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Moved by what he views as the overreaching unfairness of the current trend toward mandatory arbitration of employment disputes, the author examines the pitfalls, shortcomings, and injustices he sees in arbitration, which lacks the due process provided by civil trial in court.
On becoming a lawyer some years ago, I looked forward to the opportunity to try cases in courts of law, to vindicate the rights of my clients before judges and juries. Trials of disputes in open courts of law were, to me, at the very heart of being a lawyer. Soon after my admission to the California bar, my hopes and energies began to focus on civil rights and, in particular, employee rights. Finding myself somewhat at home in the courtroom, I could at last become (at least in my own way) a champion of the rights of working people. My hopes were soon tempered.
As a novice lawyer, I entered a new world of alternative dispute resolution--of mediation and arbitration. With the growing role of arbitration in particular, often required by employers as a condition of employment, I wondered whether I could ever become the employee rights advocate and--even more fundamentally--the civil rights lawyer I had dreamed of becoming. Indeed, would I ever gain the trial experience and the opportunity necessary to advocate the rights of my clients before real judges and juries? Alas, I asked myself, had I become an employment lawyer only to advocate the rights of working people--of my clients--in private, behind closed doors, and Without the benefit of judges and juries?
Arbitration as Private Justice
The arbitration of employment disputes is, of course, not a new phenomenon. Ever since enactment of the Federal Arbitration Act (FAA) in 1925, arbitration has been widely and successfully used as an alternative to litigation in open court. (1) Disputing parties in business and industry, including labor, have benefited widely from arbitration. Viewed by the disputants as an efficient and cost-effective way of settling disputes between parties of roughly equal stature, arbitration has often been and still is a successful way of resolving …