Originially from: World Arbitration and Mediation Review (WAMR)

Mediating Statutory Employment Claims
A New Role for the Alliance for Education in Dispute Resolution
By
Arnold Zack
Chair, Alliance Executive Committee
For the past decade, the focus of ADR in the employment field has been on arbitration
rather than mediation. Arbitration is what employers imposed on employees in order to avoid
litigation. Arbitration under employer promulgated systems before friendly arbitrators was seen
as the less expensive antidote to costly litigation, high judgments, and devastating punitive
damages in litigation involving statutes protecting employees at the workplace. The Gilmer1
decision endorsed such procedures, and the intervening years and continuing litigation have kept
the focus on arbitration. But many of those employer systems also provide for mediation, which
has long been a valued tool for bringing disputing parties to the expeditious and mutually
acceptable resolution of their disputes. Mediation has been the focus of half a century of conflict
settlement by the Federal Mediation and Conciliation Service and that has been the core of
dispute resolution in interest disputes in the unionized sector. Mediation has been overshadowed
by arbitration as the highlighted system of dispute resolution in the employment field since the
Gilmer decision. Nonetheless, there is a tendency for disputing parties to employ the services of
their arbitrators as mediators. There appears to be a greater range of participant satisfaction
likely to result from mediation than arbitration or litigation. That factor has heightened interest
in mediation as the preferred alternative to litigation and even to arbitration in the statutory
employment field.
The Alliance for Education in Dispute Resolution was founded to research and stimulate
the use of mediation in employment disputes through educating, conducting training courses, and
expanding the use of mediation in employment disputes. The Department of Labor (DOL) in
September 2000 recognized the importance of the process by granting the Alliance a $1,100,000
two-year grant to research the use of mediation to resolve disputes arising out of the enforcement
of statutes administered by the Department of Labor. This research grant has the potential for
making a permanent contribution toward claim resolution within the DOL and may be the seed
for the introduction of mediation to resolve enforcement disputes arising from statutes
administered by other agencies of the federal and state governments. As such, it may be the key
to a broader use of the mediation of legal rights disputes, helping to reduce the volume of federal
and state litigation and helping to relieve the courts of their heavy docket of enforcement cases.
The Collective Bargaining Model
Mediation and arbitration owe much of their contemporary appeal to their success over
the decades as the backbone of ADR in the unionized sector of our economy. Since 1947, the
Federal Mediation and Conciliation Service has been recognized as the source for mediators for
workplace disputes arising over the negotiation of union management collective bargaining