[Excerpt] In recent years there has been a dramatic increase in the arbitration and mediation of employment disputes outside the collective bargaining context. This increase has been part of a larger shift from reliance on litigation and enforcement agency resolution of disputes to the use of alternative dispute resolution (ADR), a trend particularly evident in the employment field. Over the course of several decades employees have gained a long list of rights and protections included in a variety of laws, ranging from anti-discrimination statutes to pension safeguards to statutory attempts to guarantee safer and healthier workplaces. The growing use of arbitration, mediation, and related techniques to resolve statutory claims arising in employment relations is in part the consequence of the high costs and long delays associated with the use of administrative agencies and the court system to resolve disputes. The unpredictability of jury awards has also prompted employers and employees to opt for ADR.
The growing use of ADR in employment disputes has occurred both inside and outside collective bargaining. In some union workplaces, the parties attempt to resolve statutory claims using the grievance and arbitration procedures in the collective bargaining agreement. In others, many, if not most, statutory claims are handled outside the collective bargaining arena, with employees pursuing their claims through the normal channels of agency and judicial resolution. In a minority but growing number of union-management relationships, the parties have created procedures for resolving statutory claims that are separate or “sheltered” from the collective bargaining agreement (Dunlop and Zack, 1997, particularly pp. 53–72; see also Zack, 1999, pp. 67–94).
The growing use of arbitration and mediation to resolve employment disputes has been especially noteworthy in the nonunion sector. In the United States, as most people know, the proportion of the workforce that is unionized has been steadily declining for over forty years and currently stands at about 14 percent. Although the membership in the Canadian labor movement has not suffered as steep a decline, a similar trend is apparent there. As in organized workplaces, the growth of employment ADR in the nonunion sector is one consequence of employers’ attempts to avoid the high costs and long delays of the judicial and administrative routes. Of course, some nonunion employers are also motivated by a desire to provide their employees with fair and equitable dispute resolution procedures (Bingham and Chachere, 1999, pp. 95–135).