Creeping Legalism in Grievance Arbitration: Fact or Fiction?

Abstract

The problem of "creeping legalism," or incremental formalism, in grievance arbitration cases has been a continuing refrain in legal literature; however, until now empirical research concerning this problem has been scant. This study provides the most comprehensive and thorough analysis to date and supports the conclusion that legalization has continued to creep upward from the early 1970s to the late 1990s. More specifically, this study shows that there has been a statistically significant upward trend, with two exceptions, for various factors including, elapsed time, charged days, and post-hearing briefs. The two exceptions are the use of transcripts, which remained constant until considerable up-and-down variation began in 1990, and elapsed time during the hearing/post-hearing phase, which maintained a constant trend line for the entire twenty six year period. These results demonstrate the need for more concerted efforts on the part of the parties, arbitrators, and supporting organizations to rein in this trend, whether it is creeping or galloping, to reach a balanced level of legalism to commensurate with the maturation of the Braden model in the mid 1980s.

Keywords: Arbitration, ADR, Alternative Dispute Resolution, legalization, Legalism

JEL Classification: K4, K41, K49, J5, J50, J52, J53, J59, K31, M54, J2