Originally from Alternatives to the High Cost of Litigation

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Introduction

Using mandatory arbitration to resolve employment disputes has been a major source of controversy since the practice emerged about twentyfive years ago. On one side of the debate have been proponents of the practice, who contend that mandatory pre-dispute arbitration provides a faster and cheaper means of resolving employment disputes than relying on conventional litigation. 

Proponents also claim that, when properly designed, mandatory arbitration provisions can entail due process protections sufficient to safeguard the rights of both sides. By contrast, opponents of mandatory arbitration contend that the practice is inherently unfair and especially fails to protect the rights of employee claimants. Opponents argue that mandatory arbitration does not provide a level playing field for the disputants, in part because of the “repeat player effect,” according to which, employers, by virtue of having previous experience in arbitration, have an advantage in the process over employees, who are likely to lack any arbitration experience—that is, they are likely to be “one-shotters.” Moreover, opponents maintain that employer-promulgated procedures, which are designed by employers usually without input from employees, can be slanted to favor employers.