[Excerpt] There is vociferous opposition to employers forcing pre-dispute arbitration agreements on employees. Critics argue that employees are not voluntary participants in the process, which they say unfairly favors employers. Advocates of mandatory arbitration dispute these charges and argue that arbitration offers employees and employers significant advantages over litigation. For example, they argue, among other things, that that litigation is not as accessible as arbitration because lawyers will not take low value employment cases on a contingency basis.
Critics of mandatory employment arbitration have moved the debate into the legislative arena. Bills have been introduced in state legislatures and in Congress that would, if enacted, substantially change the current arbitration system. For example, the proposed “2009 Arbitration Fairness Act” would amend the FAA to largely overturn Gilmer and Circuit City by expressly invalidating mandatory pre-dispute arbitration agreements imposed on employees and consumers, and allowing only voluntarily signed, post-dispute arbitration agreements for these classes of claimants.
Empirical research has an important role to play in this debate. By shedding light on how employer-promulgated arbitration systems operate, researchers can inform the discussion of public policy and legislative decision making. This column will look at some recent empirical research to see what it can tell us about the current system of employment arbitration and then identify areas in need of additional research.