The American Civil Liberties Union supports the use of alternate dispute resolution in employment if it is voluntary and meets reasonable standards of fairness. Because of the narrowness of legal bases for relief and economic barriers to litigation, many people with legitimate disputes with their employers are unable to obtain relief in the civil courts. ADR holds the promise of increasing the number of people who are able to obtain justice in workplace disputes.
ADR, however, contains the potential for enormous abuse. Absent external constraints, the employer has the ability and the incentive to shape its private justice system in a manner that will allow it to prevail in most cases. Very few individual employees have sufficient bargaining power to resist such abuses. It is imperative that the law prevent employers from requiring a de facto surrender of civil rights as a condition of employment. ADR should be permitted, but only when it is voluntary and contains reasonable due process protections. There are significant problems achieving such a system, especially in providing a truly neutral arbitrator in the absence of a union.
These problems, however, are soluble, and need not destroy the cost effectiveness of ADR. While ADR has much to offer, it does not relieve the government of its obligation to provide a civil justice system which the average person can afford.