Arbitral and Judicial Proceedings: Indistinguishable Justice or Justice Denied?

Abstract

This is an exploratory study comparing the processes and outcomes in the arbitration and the litigation of workplace racial harassment cases. Drawing from an emerging large database of arbitral opinions, this article indicates that arbitration outcomes yield a lower percentage of employee successes than in litigation of these types of cases. At the same time, while arbitration proceedings have some of the same legal formalities (legal representation, legal briefs), they do not have other protective procedural safeguards.

Keywords: ADR, alternative dispute resolution, arbitration, arbitral proceedings, judicial proceedings, Section 118 of the 1991 Civil Rights Act, Gilmer v. Interstate/Johnson Lane Corp., employment discrimination, civil rights disputes, empirical research, benefits, fairness, outcomes, disadvantages

JEL Classification: K19, K39, K40, K49