Alternatives to Mainstream Alternative Dispute Resolution: Eliminating Forced Arbitration Agreements as a Condition of Employment

Abstract

Today, many employers require their employees, as a condition of employment, to agree to arbitrate employment-related legal claims rather than pursue them in court. While arbitration can be mutually beneficial, allowing parties to avoid the cost, time, publicity, and unpredictability associated with traditional litigation, mandatory arbitration often lacks the same procedural safeguards afforded by the justice system. Forced arbitration not only deprives employees of their right to sue their employer in a public court, but it also denies them any meaningful voluntary choice to surrender that right. This Article takes a close look at a variety of workplace grievance procedures with a particular focus on peer-centered processes. This Article then argues that preserving employee choice to pursue litigation or internal dispute resolution with peer advocacy remains the most effective way to promote fairness and justice for employees. Finally, this Article suggests several workable alternatives to mandatory arbitration that are cost-effective and advantageous to employees and employers alike.

Keywords: alternative dispute resolution, forced arbitration agreements, employment, workplace dispute resolution, at-will employment, workers' rights, peer advocacy, just-cause dismissal

JEL Classification: K10