Practical Concerns Affecting the Arbitration of Statutory Claims - Chapter 31 - AAA Handbook on Employment Arbitration and ADR - Third Edition
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H. David Kelly, Jr. has been a Partner in the Washington, D.C. law firm of Beins Axelrod, P.C. since 2003 and continues to practice in the areas of labor, employment and employee benefits. Mr. Kelly received his LL.M. in Labor from Wayne State University, his J.D. from the Northeastern University School of Law, and his B.G.S. from the University of Michigan. He is the author of several articles on Arbitration and United States Supreme Court action.
The arbitration of statutory employment claims remains controversial despite the fact that the United States Supreme Court and Congress have both embraced it as a means to resolve these employment disputes, at least under some circumstances. Its proponents declare that it is preferred because of attributes noted by the court: its alleged speed, economy, and informality in comparison with litigation.However, there is good reason to suggest that the primary motivation prompting employers to mandate its use by their employees is the desire to avoid a jury trial. The official support for, and acquiescence to, the privatized adjudication of public law issues manifested in the Supreme Court’s Gilmer decision and Congress’ encouragement of alternative dispute resolution, including arbitration where appropriate, in the Civil Rights Act of 1991 and the Americans with Disabilities Act, raise very important questions for our civil society and constitutional order that cannot be addressed within the scope of this chapter. The goal here is much more modest: to assist counsel who may be considering submission of a statutory claim to arbitration, by alerting them to issues they may likely confront if they choose to use arbitration to resolve a particular dispute. While many of these issues also arise with employer-mandated arbitration, voluntary arbitration is its focus.