Originally from Employment Arbitration - 2nd Edition

The Institutional Position: Integrating the Legal Doctrine into Corporate Policy

Thomas E. Carbonneau

The American Arbitration Association’s (AAA) Practical Guide (hereinafter Guide) is a good example of responsive and practical corporate literature. It provides solutions. The AAA has identified an emerging need in the marketplace for dispute resolution services and proposes a framework for satisfying that need. In effect, the AAA sees an opportunity to play a significant role in the founding and development of a new area of arbitral adjudication: “The American Arbitration Association, the preeminent provider of ADR services in the world, is well-suited to offer guidance in this area in support of efforts by employers to responsibly develop ADR programs to address workplace disputes.” The promotional character of the language testifies to the competitive nature of the service-providing business.

The Guide is true to its title. It consists in a set of useful practical guidelines that can assist companies in establishing an employment dispute resolution process that is “responsible” and which overcomes the inaccessibility of courts and administrative agencies. It is also a bold document that testifies to a new direction in dispute resolution that is likely to change both society and the arbitral process. In effect, the AAA is responding to the courts’ delegation of adjudicatory responsibility to the private sector. The courts (and, in a less visible way, the U.S. Congress) appear to have decided that the delegation of authority is legitimate and, for all intents and purposes, basically irrevocable.

The Guide posits “a fair, cost-effective and private forum” as the standard for workplace justice. Taken together, the adjectives provide a pragmatic definition of justice. Functionality—not mysticism, theological fervor, or procedural perfection—appears to be central. In order to achieve a workable form of adjudication, there must be a “bottom-line” approach both as to costs and procedural complication. It is also important that the system operate autonomously, free from the “politicizing eye” of public scrutiny and the interference of regulatory accountability.