Law Commons^™

Mandatory Predispute Consumer Arbitration, Structural Bias, And Incentivizing Procedural Safeguards, Nancy A. Welsh

Nancy Welsh

Within the past several decades, there has been an explosion in the creation, institutionalization and use of “alternative” dispute resolution procedures. Mandatory predispute arbitration has generated the most controversy because it appears beset with structural bias. The recent cases of AT&T Mobility LLC v. Concepcion and Compucredit Corp. v. Greenwood have raised additional concerns as the Supreme Court has announced that corporations can force consumers to arbitrate their private and statutory claims and give up their rights to pursue class relief. This Article begins by arguing that the Supreme Court’s enthusiastic embrace of mandatory predispute arbitration should be understood primarily …

Comparing Mandatory Arbitration And Litigation: Access, Process, And Outcomes, Alexander Colvin, Mark D. Gough

Alexander Colvin

[Excerpt] What do we know about mandatory arbitration and its impact? Some existing studies have examined samples of employment arbitration cases, usually obtained from the American Arbitration Association (AAA), which is currently the largest arbitration service provider in the employment area. Although some early studies found relatively high employee win rates and damage awards in arbitration, comparable to those in litigation, these results were mainly based on arbitration under individually negotiated agreements or in the securities industry and involved relatively highly paid individuals. More recent studies using larger samples of cases based on mandatory arbitration agreements find much lower employee …

Assessing The Case For Employment Arbitration: A New Path For Empirical Research, David Sherwyn, Samuel Estreicher, Michael Heise

Michael Heise

No abstract provided.

Employment Arbitration: Empirical Findings And Research Needs, Alexander Colvin

Alexander Colvin

[Excerpt] There is vociferous opposition to employers forcing pre-dispute arbitration agreements on employees. Critics argue that employees are not voluntary participants in the process, which they say unfairly favors employers. Advocates of mandatory arbitration dispute these charges and argue that arbitration offers employees and employers significant advantages over litigation. For example, they argue, among other things, that that litigation is not as accessible as arbitration because lawyers will not take low value employment cases on a contingency basis.

Critics of mandatory employment arbitration have moved the debate into the legislative arena. Bills have been introduced in state legislatures and in …

Institutional Pressures, Human Resource Strategies, And The Rise Of Nonunion Dispute Resolution Procedures, Alexander Colvin

Alexander Colvin

The author investigates factors influencing the adoption of dispute resolution procedures in the nonunion workplace. Various explanations are tested using data from a 1998 survey of dispute resolution procedures in the telecommunications industry. The results suggest that both institutional pressures and human resource strategies are factors driving the adoption of nonunion procedures. Among institutional factors, rising individual employment rights litigation and expanded court deferral to nonunion arbitration have led to increased adoption of mandatory arbitration procedures in the nonunion workplace. At the same time, an older institutional factor—union substitution by nonunion employers aimed at avoiding union organizing—continues to inspire the …

From Supreme Court To Shopfloor: Mandatory Arbitration And The Reconfiguration Of Workplace Dispute Resolution, Alexander Colvin

Alexander Colvin

[Excerpt] In a series of court battles during the 1990s, employers successfully defended the use of mandatory employment arbitration against challenges that the procedures inherently undermined the statutory rights of employees. Efforts to introduce legislation in Congress aimed at reversing the Gilmer decision were unsuccessful. In 2001, the Supreme Court reaffirmed its acceptance of mandatory arbitration to resolve employment disputes in Circuit City Stores, Inc. v. Adams. However, some courts have been willing to strike down arbitration procedures that contain particularly egregious violations of due process. For example, courts have refused to enforce arbitration agreements that restrict employee damage awards, …