Originially from: World Arbitration and Mediation Review (WAMR)

New Uses of the Due Process Protocol:
The Expanding Role of ADR in the Workplace
By Arnold M. Zack. Mr. Zack is an arbitrator and a mediator. He
teaches at Harvard and Yale Law Schools and is a past president of the
National Academy of Arbitrators. This article was originally presented at a
meeting of the Association of Labor Relations Agencies in Ottawa on July
23, 1996. [Editor's Note: With this piece, Mr. Zack continues his reporting
on the Due Process Protocol, of which he is one of the authors. Previous
installments can be found in 6 WAMR 217 (Oct. 1995) and 7 WAMR 10
(Dec./Jan. 95/96).]
In the first half of this decade many dramatic changes have occurred in
workplace ADR and I suggest that even more startling changes are about
to happen in the second half. ADR has evolved from the traditional use of
mediation and arbitration in labor relations to a procedure for avoiding the
cost delays and forum shopping of endless litigation of discrimination
cases, and now promises to expand to a whole range of work place issues,
initially in the public sector and thereafter into the private sector.
The Labor Relations Model
For those of us in the labor relations field, the ADR processes of
mediation, fact finding and arbitration are old hat if not old friends. For
more than 50 years in the private sector and for more than 30 years in the
public sector we have finely honed a system of dispute resolution which
has provided a workable substitute for the strike.
But while "our" procedures have provided fairness and equitable
treatment to employees in the organized sector, employers in the nonorganized
sector have developed their own ADR structures for resolving
work place disputes. While our labor management structures have been
developed to protect the parties and the public against strikes, these
employer-promulgated systems have been developed to protect the
employer against the cost, delays and uncertainty of litigation and
potentially staggering jury verdicts over claims of statutory violation.
We've read of employer-crafted schemes where the employer appoints the
arbitration panel, where discovery is restricted to a list of potential
witnesses, where the only permitted deposition is by the employer of the