Arnold M. Zack is recent past president of the National Academy of Arbitrators and was cochair of the working group which produced the Due Process Protocol for Mediation and Arbitration of Statutory Disputes Arising Out of the Employment Relationship.
Michael T. Duffy is chairman of the Massachusetts Commission Against Discrimination.
July 1 marked the commencement of the new program of arbitrating cases before the Massachusetts Commission Against Discrimination. Its development was often a bumpy process, say the authors—both key players in this program who present it as a model for adaptation by other agencies. "True believers must undertake a marketing strategy to demonstrate the value of such systems to all the skeptical constituencies," they say.
The development of mediation and arbitration systems to reduce the costs and delay of traditional litigation of discrimination cases does not happen automatically. The federal and state agencies charged with enforcing civil rights laws in the past often have resisted such changes even though the overwhelming evidence is that caseloads are increasing while budgets remain stagnant or shrink. The plaintiff bar is concerned about due process for their clients and management tends to suspect the incursions of such procedures on the unilateral authority to create arbitration procedures under the Gilmer decision.