Emerging Systems for Managing Workplace Conflict

Chapter 6

Design of Conflict Management Systems:

External Features

Conflict Management System Continuum

Conflict Mgmt. Systems

Internal Features:

- More cost-effective

- used in early resolution phases

- less invasive to employees

External Features:

- More expensive

- used in later resolution phases

- impose solutions on employees

- Involve experts/outsiders

External Features

Advantages:• Greater knowledge/expertise• More cost effective• Available on short notice• Presumed objectivity give more credibility

External Design Options

• External Mediation• Advisory (Nonbinding)

Arbitration/Hearings• Fact Finding with a

Recommendation• Final and Binding

Arbitrations• Concerns about

Arbitration

• Legal Consultation Benefits

• Employee Costs for Mediation and Arbitration by External Neutrals

• Employee Costs to Initiate Mediation or Arbitration

• Cost Sharing in Fees of the Mediator or Arbitrator

Stakeholders Views

• View from the Plantiff Bar• View of the EEOC• View of the National Academy of Arbitrators• The Dunlop Commission on Worker-

Management Relations• The Due Process Protocol on Employment

Arbitration

Legal Challenges to Mandatory Predispute Arbitration

• Challenges Based on Contract Defenses

• Adequate Consideration• Validity of Adhesion

Contracts • Validity of Ambiguous

Language• Knowing and Voluntary

Agreement to Arbitrate

• Challenges Based on Unconsionability

• Cost to Employee• Restrictions on

Discovery• Restrictions on Scope of

Remedy • Employer Control of the

List of Arbitrators• Form of the Award

Best Practices in Design of Employment Arbitration Provisions• Scope of Disputes Subject to Arbitration• Exclusivity• Requirement to Attempt Mediation Prior to Filing a

Demand• Time Limit to Initiate Arbitration• Right to Representation• Initiation of Arbitration• Selection and Authority of the Arbitrator• Venue and Governing Law• Prehearing Discovery

Best Practices in Design of Employment Arbitration Provisions• Subpoenas and Documents• Order of Presentation• Standard and Burden of Persuasion• Evidence and Argument• Allocation of Arbitrator Expenses• Form of the Award• Record of Proceeding• Damages and Relief• The Uncertainty of Predispute Mandatory Arbitration

Workplace Neutrals:Qualifications and Standards

• The Employment Mediation Profession• The Employment Arbitration Profession• Ethical Expectations and Qualifications in

Mandatory Employment Arbitration• Sources of Workplace Neutrals

Workplace Neutrals:Qualifications and Standards

• The Employment Mediation Profession• The Employment Arbitration Profession• Ethical Expectations and Qualifications in

Mandatory Employment Arbitration• Sources of Workplace Neutrals