Employment Lawyers and Mandatory Arbitration: Facilitating or Forestalling Access to Justice?

• Published in: Managing and Resolving Workplace Conflict Vol. 22; pp. 105 - 134
• Main Author: Gough, Mark D
• Format: Book Chapter
• Language: English
• Published: United Kingdom Emerald Group Publishing Limited 01.01.2016; Emerald Publishing Limited
• Subjects: HR & Organizational Behaviour; Industrial relations; Industrial/Labour Relations; access to justice; Arbitration; employment law; alternative dispute resolution
• DOI: 10.1108/S0742-618620160000022005
• ISBN: 9781786350602; 1786350602
• ISSN: 0742-6186

Abstract Purpose This chapter investigates attributes of an unexplored actor in the contemporary industrial relations system – plaintiff-side employment attorneys – and the premise that pre-dispute mandatory employment arbitration expands employee access to justice. Methodology/approach It presents data from a novel survey of 1,256 employment plaintiff attorneys and the universe of employment disputes administered by the five largest arbitration providers in the United States. Findings I report multiple measures indicating employment lawyers hold negative views of arbitration and that arbitration acts as a barrier to employee access to justice: A majority of attorneys say employment arbitration clauses have a positive impact on their willingness to reject a case for representation and a negative impact on their willingness to accept a client under a contingency-fee arrangement, and report negative perceptions of the fairness of outcomes and the adequacy of due process protections in arbitration relative to litigation. Furthermore, attorneys report accepting potential clients covered by arbitration agreements at half the rate of potential clients able to sue in court. Finally, arbitration and litigation filing statistics reveal no evidence that low-income or low-value claimants or claims are accessing the arbitration forum. Originality/value Novel data compiled here illuminate the institutional characteristics of plaintiff-side employment lawyers and the arbitration forum. They question the assertion that arbitration is an accessible dispute resolution forum for employment disputes relative to civil litigation.