Employee Rights and Employment Policy Journal
PROCEEDINGS OF THE 1997 ANNUAL MEETING
ASSOCIATION OF AMERICAN LAW SCHOOL SECTIONS
ON EMPLOYMENT DISCRIMINATION LAW
AND ALTERNATIVE DISPUTE RESOLUTION
[P.269](The following is an edited transcript of the proceedings of the joint
meeting of the Employment Discrimination Law and Alternative Dis-pute
Resolution Sections at the AALS Annual Meeting, Washington,
D. C., January 7, 1997.)
CAROL L. IZUMI, PROFESSOR OF CLINICAL LAW,
GEORGE WASHINGTON UNIVERSITY,
CHAIR, AALS SECTION ON ALTERNATIVE DISPUTE RESOLUTION
It is my pleasure to welcome you to the program today on
"Mandatory Arbitration of Employment Disputes." The program is
being jointly sponsored by the Section on Alternative Dispute Resolu-tion
and the Section on Employment Discrimination Law.
Professor Herbert Bernhardt, who is the Program Chair here
with me, has helped to collaborate on assembling what we think is an
excellent panel, who will present a variety of perspectives on this con-troversial
topic. Let me first introduce Professor Herbert Bernhardt,
who is to my immediate left. Professor Bernhardt is the Chair-elect of
the Section on Employment Discrimination Law. He is a Professor of
Law at the University of Baltimore, where he has been teaching since
1971. Prior to his association with the University of Baltimore, Pro-fessor
Bernhardt taught at Rutgers, South Carolina and Northeastern
Law Schools. Professor Bernhardt is active as a labor arbitrator. He
specializes in teaching labor law and employment discrimination law.
Professor Bernhardt will serve as our moderator this morning. Profes-sor
Bernhardt will give us a very brief overview, as our first speaker,
of the legal developments in this area.
Our second speaker will be Catherine Hagen. Ms. Hagen is a
partner in the firm of O'Melveny & Meyers, where she specializes in
labor and employment law. Her practice includes the representation
of employers in the public and private sectors, in the areas of employ-ment
discrimination, National Labor Relations Board and Public Em-ployment
Relations Board matters, collective bargaining, wrongful
discharge litigation and public employee dismissals and layoff. She
has lectured extensively on the subject of sexual harassment and the
Americans With Disabilities Act. She has served as the Chair of the
1990 Southern California Labor Law Symposium, and is on the Exec-utive
Committee of the Los Angeles County Bar Labor Law Section,
is the co-editor of the 1996 Schlei and Grossman Employment Dis-crimination
Law supplement, and has written extensively and made
numerous presentations on the subject.
Our next speaker will be Paul Tobias. Mr. Tobias is the Senior
Partner in the firm of Tobias, Krauss & Torchia in Cincinnati, Ohio,
where he now specializes exclusively in the rights of individual em-ployees,
primarily in wrongful termination litigation. Mr. Tobias is a
graduate of Harvard College and Harvard Law School. He has spe-cialized
in labor and employment law for 38 years, having represented
companies, unions and individual employees. He is the author of ten
published articles in the field of labor and employment law, has taught
a Labor Law Seminar at the University of Cincinnati and has made
over 100 presentations to bar associations and other groups concern-ing
employee rights. Mr. Tobias is the founder of the National Em-ployment
Lawyers Association and has served as its first Executive
Director, Chairman and Editor of the newsletter, The Employee Ad-vocate.
He is the author of a three-volume work, Litigating Wrongful Discharge Claims.
Following Mr. Tobias we have Marion Zinman, who is the Re-gional
Vice President of the American Arbitration Association. Ms.
Zinman is in charge of AAA's White Plains, New York office. She
has been with AAA for seventeen years. Ms. Zinman received her
bachelor's degree from Cornell University's School of Industrial and
Labor Relations, and her M. B. A. from Fordham University's Gradu-ate
Business School. She is the author of numerous articles on alter-native
dispute resolution for the American and New York State Bar
Associations and writes regularly for The Dispute Resolution Times,
an AAA publiction. Ms. Zinman is First Vice President of the Cornell
NY ILR Women's Network, a member of the Visiting Committee of
Fordham's Graduate Business School, and has served as a consultant
to the Management Decision Labor Program of NYU Graduate
School of Business. During her 17 years with the AAA Ms. Zinman
has organized or participated in over two hundred training programs
for neutrals, advocates and parties in the ADR process.
Our final speaker will be Professor Ted St. Antoine of the Uni-versity
of Michigan School of Law. Professor St. Antoine is the James
E. and Sarah A. Degan Professor of Law. He is a graduate of Ford-ham
College and Michigan Law School, and did post-graduate work in
law and economics at the University of London. He practiced labor
law with the firm of Woll, Mayer & St. Antoine in Washington, D. C.,
and joined the Michigan Law faculty in 1965. He was the Dean of the
Michigan Law School from 1971 to 1978. He is a past secretary and
council member of the ABA's Labor and Employment Law Section,
and past Chair of the Michigan Bar's Labor Relations Law Section.
He has served as Vice President of the National Academy of Arbitra-tors
and Chair of the UAW-GM Legal Services Plan. Professor St.
Antoine is currently a member of the UAW's Public Review Board.
From 1987 to 1992 Professor St. Antoine served as reporter to the
Drafting Committee for the Uniform Law Commissioners' Model
Employment Termination Act. He is co-editor of a widely used case
book, Labor Relations Law, now in its ninth edition.
At this point, I am going to turn the panel over to Professor
HERBERT BERNHARDT: Thank you, Carol. I will attempt a
brief overview of what led up to the dispute over Mandatory Arbitra-tion
of Employment Disputes. We have an excellent panel, and I
won't take too much of your time.
To take it a little bit back, the governing decision of the arbitra-tion
of employment disputes before the Gilmer v. Interstate/ Johnson
Lane Corporation 1 decision, was Alexander v. Gardner-Denver. 2 Al-exander
v. Gardner-Denver, decided in 1974, involved a collective bar-gaining
arbitration. The lower courts had held that this arbitration in
the collective bargaining context barred the employee in that case
from bringing suit in the federal courts. The U. S. Supreme Court
overruled that and held that the employee was not barred from bring-ing
a law suit after having lost the arbitration.
The Court, in effect, gave the back of its hand to the arbitrators,
not only holding that the employee was not barred, but even holding
that whether or not the Court gave any weight at all to the previous
arbitration decision was dependent on the Court's view of the arbitra-tor's
decision. 3 Gilmer completely reversed this as to non-collective
bargaining arbitrations. Indeed, there is a Fourth Circuit Court of Ap-peals
decision that holds that Gilmer reversed, overruled, Alexander v.
Gardner-Denver, and that even union-management arbitrators must
be resorted to before going to the courts. 4
Gilmer was a stockbroker. His arbitration agreement was not in
his employment contract. It was in his registration contract with the
Exchange. The case was decided under both the Federal Arbitration
Act 5 and the Age Discrimination in Employment Act. Gilmer was 62
years old and he charged age discrimination when he was discharged,
and the Supreme Court reached out and said that Gilmer must first go
to arbitration. The Court went on to indicate, although it is only dic-tum,
that such arbitration would finally settle the case.
Gilmer somewhat blindsided those of us who are in labor and
employment law because the forbearers of Gilmer were not labor
cases. The Supreme Court before the Gilmer case had been deciding
a number of commercial arbitration cases, and directing the parties to
arbitration rather than to the courts. 6 It is perhaps not surprising, in
terms of the goal of the Supreme Court in these earlier cases, that it
extended the principle to labor cases. A table in the Fact Finding Re-port
of the Commission on the Future of Labor Management Rela-tions,
known in short as the Dunlap Commission, indicated that in the
Federal District Courts alone, employment cases from 1971 to 1991
had grown from 4,331 to 22,968, a 430 percent increase, which made
labor cases the fastest growing category of cases in the Federal
Courts. 7 There has been a similar degree of growth in the State
The Gilmer decision could be limited in a variety of ways, not the
least among which is the fact that the Federal Arbitration Act suppos-edly
exempts arbitration clauses in employment contracts. The Courts
of Appeals, however, have not seen it that way. They have in many
cases ordered arbitration, 8 and the use of arbitration and mediation
has been growing to the extent that it now, at least theoretically, cov-ers
millions of employees.
There are a number of questions that I might be interested in
raising, of course without limiting our panelists at all. The main one is
how do you insure the fairness of arbitration where the system is
drawn up by one of the two parties? How are the arbitrators se-lected?
How do you go about making this system affordable to em-ployees?
Another question might involve the entire context of the
system. Arbitration under collective bargaining agreements has been
considered by most scholars and many practitioners as one of the fair-est
systems of protecting individual employees that has ever been de-vised. 9
The arbitration system in collective bargaining, however, is
really quite different from an arbitration system in an employment
context. Under a collective bargaining agreement, the union is a
watchdog and the parties bargain each individual grievance before it
goes to arbitration. Indeed, the endorsement of arbitration in the col-lective
bargaining system by the Supreme Court, was not simply an
endorsement of arbitration, but an endorsement of a system of indus-trial
self-government. 10 In that system, 95 percent, or more, of the
cases where grievances are raised are decided by the union and the
employer bargaining with each other on a regular basis. How do you
insure that kind of fairness, or anything approaching that kind of fair-ness,
in a system where there isn't that kind of ongoing relationship?
Carol has already introduced our other speakers. I am very
pleased that we were able to put together as distinguished a panel as
we have, and I will now yield the floor to Catherine Hagen, who is an
outstanding representative of employers.
CATHERINE HAGEN: Thank you Professor Bernhardt. I come to
you with perhaps a different perspective. I am not an academic,
where most of my panel members are and most of you certainly are.
But I do represent employers, including some universities in Califor-nia,
in regard to almost anything that has to do with employment. I
tried one of the first tenure cases in Clark v. Claremont University
Center and Graduate School, 11 and I am very familiar with tenure is-sues
and those kinds of things, and I come to you as an extraordinarily
strong advocate for mandatory ADR. I am going to talk about both
arbitration and mediation from the employers' perspective, and why
employers are pushing this battle so hard, that if you have an agree-ment,
pre-dispute with employees, that requires arbitration or media-tion,
that those agreements ought to be enforced by the Court.
Let me tell you where these disputes start from the employers'
side. First of all, the jury system, the court system, has evolved in a
way that at least from looking at it from our perspective, is destructive
of employer-employee relationships, is not an economic forum, is not
a speedy forum, is not a forum where the employment relationship
can be preserved after the dispute has arisen, and it frankly does not
work very well for anyone except for the lawyers. Employers' lawyers
have at least as much self-interest in preserving an expensive system
as employee lawyers do. I get a lot of money for representing employ-ers,
at least in part, because if the employer goes to court on a case,
particularly a sex harassment case, and loses in front of a California
jury, they are often looking at seven, eight figures of damages. That
justifies me charging the high rates that we charge on the employers'
side to get that case into a position that we can either settle it, win it
on motion, or, heaven help us, try it in front of a jury. These are very
expensive cases. The cheapest case, and I did some research inter-nally
-- and we are not an inexpensive law firm, but we are not unusual
in the big-firm practice -- the cheapest case we could find in the last
five years of an employment discrimination case that had gone to a
jury, we won that case. We spent $200,000.00 in attorneys' fees.
That's the cheapest one, winning that case. I tried a big sex case a
couple of years ago for IBM, where our fees were in the seven-figure
range to get that case to a jury and win. Our clients would rather
spend that money in other ways. We like getting it, but they would
rather not spend a minimum of $200,000.00 on a simple case to get it
to a jury even though they win. There are better ways to solve em-ployer
Second, those of you and those of us who grew up in the union-management
context know that many times in a grievance procedure,
you do not need to destroy the relationship in order to resolve the
dispute. You have to keep the relationship going, because with a
union, you work with the same people year after year. You might
have a very bitter dispute, one involving sexual harassment, or racial
harassment, or something very onerous, something very, very trouble-some,
that does get worked out and the parties go back to work, and
people do not have to go looking for other jobs. In the litigation con-text,
that almost never happens. The relationship is irreparably
harmed by the litigation process.
The third point, these are very time-consuming cases. At least in
our California system, the best case is two to three years from dispute
to resolution, and then you still have the appeal to go.
Finally, the jury system, at least as seen from the employer per-spective,
is not much different from a lottery. I have seen cases that
have outrageous facts where the employer or a manager of the em-ployer
has done something truly awful; either in the sexual harassment
arena, in the racial arena, they've made a decision based on race, or
they have allowed an employee to sexually humiliate another em-ployee.
And those are not the cases, folks, that go to jury trials.
Those are settled very, very fast; they are resolved, and they are over.
The cases that come across my desk that are the six-figure attorney
fee, jury trial cases, are often very "iff-y" cases. That is why they are
there, because the employer cannot be convinced that they did any-thing
wrong, and the employees, for either right or wrong reasons,
think that their life is ruined and they deserve seven million dollars to
get it back together. The jury system, at least in my jurisdiction in
California, is one that works a whole lot more like a lottery than it
does like a system of justice. You have people who hit the jackpot
with very "iff-y" cases that do very well, and all of us have seen other
cases where the employer ought to pay something and the jury exon-erates
the employer. In my view, for the greater societal good, for the
promotion of genuine equality in the work environment, that's a
dumb system to enforce it. Now, I know that my friend, Paul, over
here is going to tell you why you need the threat of the big jury verdict
to keep employers honest ˙ and that is a position that certainly has an
argument that can be made. I would submit that arbitral, regular jus-tice,
justice that the small case can afford, that can get to a neutral
fact-finder, is going to be, in the long run, better for both employers
and employees. Maybe not for the lawyers but for the parties.
Arbitration is cheaper, it has less publicity, it's truly private jus-tice
or it can be private justice, which often, particularly in a trouble-some
sexual harassment case, has immense appeal to both sides.
People do not want to litigate what they did in their personal lives in
front of the world. It's faster, it's cheaper, and it's more manageable.
If properly managed, it can provide a broader access to a neutral
Let me talk about a couple of cases in point, because I think that
is the best way to make the points I want to make. I have a client, a
large bank system in California, that several years ago decided to have
a mandatory ADR system for all of its employees. They worked with
counsel to develop a five-step program, and these are the steps:
l. The Open Door -Go to your manager and say that things are
not going well and I don't like it, and the manager maybe resolves it
and maybe he doesn't. That's the open door step.
2. Employee Peer Panel -A hearing is held with three employ-ees
chosen by the employee, three employees chosen by the manage-ment
of the section of the bank that is involved. (This, by the way, is a
non-unionized bank. These are all non-union employees.) That is a
fact-finding panel, attorneys are not allowed to participate. The deci-sion
of this group, whatever the polling of the group, has no admissi-bility
if this case ever eventually does get to court or arbitration. The
panel's decision is then reported to the parties, and at that point step
three is a Mandatory Mediation Process.
3. Mandatory Mediation Process -Held before one mediator
chosen mutually by the parties -- the employee and the company --
from a list that the company maintains. I believe that the Mandatory
Mediation is paid for by the company.
At that last point, if the dispute is not settled, it goes to
Mandatory Arbitration. Mandatory Arbitration is sort of mandatory.
That is, if you are a new employee of this company since 1993, the
year they put this process into place, you have Mandatory Arbitration
as a condition of employment you signed up for when you signed on
the dotted line to become an employee. If you were an existing em-ployee
in 1993, you had 90 days to opt out of Mandatory Arbitration.
So, you had to file a form, which was widely distributed within the
company, within 90 days saying, "I do not agree to mandatorily arbi-trate
any disputes I may have with this company." If you did not do
that, you are bound by the Mandatory Arbitration provision in their
Since this company has had the Mandatory Mediation Arbitra-tion
requirements in place, I am aware of about 15 cases that have
made it to the Mandatory Mediation phase that were not settled at the
Open Door level. Of those cases, most of them were brought by peo-ple
who opted out of the Mandatory Arbitration. So you know that if
it gets there, they don't have to arbitrate if they don't want to. I have
to tell you that not one of those cases has yet gotten to court, which is
not good for my bottom line but is great for the company's because
they are not paying all these legal fees. Every single one of those
cases has resolved itself at the Mediation level. I think that that tells
us something about the employment disputes -- even tough disputes,
sex harassment, race discrimination -- those disputes, when given an
opportunity to be resolved through intelligent ADR do get resolved.
What has happened in a number of those cases that I have been in-volved
in the background of, because lawyers are not invited to par-ticipate
until the Mediation phase (they are not allowed to participate
in this Step 2 -Peer Panel Phase, and we are not often called if the
employee does not bring a lawyer to the Mediation Phase), I typically
get the Demand Letter from the employees' lawyer, saying my client
has been grievously harmed and we demand 1.7 million dollars to
remedy the harm. I write back and say, "This company has the
mandatory ADR process, here are the steps, do it, then call me later."
Routinely the lawyer writes back and says, "You can't mandate medi-ation.
This is crazy." And I write back and say, "We can at least man-date
that you exhaust your internal remedies, and mediation is an
internal remedy. Call me after you have mediated, and we'll decide
whether you have to go to arbitration or not." In every single one of
those cases, the company resolves it. Those cases have been resolved
at the Mediation level, sometimes with the lawyers participating, if the
grievant chooses to do so. Most of the time it is done with only the
company and the grievant doing it.
From the company's point of view, this program is an overwhelm-ing
success, even though they side-stepped the issue of "Can they
mandate pre-dispute arbitration for existing employees when they
changed their policy?" (because they allowed the opt-out). Even
though they chose to do that , which I think in this case was an excel-lent
decision, they have won, in the sense that they are paying a whole
lot less money for legal fees than they were three years ago.
I think two of the issues that enlightened employers have to con-sider
are (1) if you're going to have a mandatory mediation or arbitra-tion
provision, are you going to try to limit the remedies that the
person could get if they went to court; and (2) how is it going to work:
are you going to limit procedurally some of the Due Process guaran-tees?
I need to tell you that my bias, which is not shared by every
employer lawyer I know, is that to the extent you limit remedies and
due process protections, you are probably hurting your chances to
have a court require that the arbitration remedy be used.
Next, I'll go to mandatory arbitration of statutory claims. I rou-tinely
recommend this for most employers even though I understand
the employer will get more claims than it might have otherwise gotten
because it is such a more approachable system, so much less expensive
for the employee. Some employers say, "But I don't want to let the
arbitrator give punitive damages, I'm not going to let the arbitrator
give punitive damages." My advice on that is: then, you may not get a
court to enforce your arbitration provision, and I don't think that's a
good idea. And my advice routinely is that arbitration, if mandatory,
ought to be a choice of forum and it should not affect substantive rem-edies.
As I said, that is not a universally held view.
Another issue that is somewhat related is whether the parties can
engage in discovery in a mandatory arbitration forum? The AAA
(and you are going to hear more about this in a few minutes from
AAA itself ) has determined that it is up to the arbitrator, whatever
the arbitrator decides. I actually, as an employer's lawyer, think that's
O. K., that is as good an answer as you are going to get. I have col-leagues
who will argue that arbitration in the employment discrimina-tion
kind of case ought to be identical to arbitration in a union-management
case. You do not need discovery in a union-manage-ment
case, so why do you need discovery in the sex harassment or the
race discrimination case. I do not agree with that. I think that for
there to be a fair forum, there has to be some opportunity for deposi-tions,
there has to be an opportunity to get documents, there has to be
an opportunity to discover what the case is about. Discrimination
cases are typically trying to get inside the heads of the decision-mak-ers
and say, "Yeah, this was because I'm a woman, and not because I
didn't turn in my report on time." It is very difficult, I think, to do
that in a traditional union-management type arbitration with no dis-covery
at all. So for that reason, when I draft these clauses, I draft
them as a choice of forum, we say that the employee agrees to arbi-trate
before a neutral selected this way (however we decided: by a
panel, or AAA , or through some other system) any claim that could
have been brought in state or federal court, or an administrative
agency of the federal or state government, such as wage claims, under
the procedural rules as determined by the arbitrator selected. We
think we are more likely to compel arbitration in that case, we think
we are more likely to enforce the exclusivity of that remedy in that
case, and we certainly think we are going to win the exhaustion case
even if we lose the exclusive remedy case in that case.
More importantly, I think that the perception of fairness by both
sides, the employer and the employee who has a lot more reason in
most cases to distrust the system (whatever the system is because of
his or her inexperience with it), I think that to the extent that the
system is perceived as fair in giving both sides a fair shot, it will be an
exclusive remedy whether or not legally its an exclusive remedy or
not. Mainly because the employee who has been harmed wants to
have his or her day in court, and if he or she perceives that he or she is
going through a kangaroo court process with someone who is be-holden
to the company, paid by the company, bought by the company,
that employee is much more likely to pursue that issue in a state or
federal forum rather than in front of an arbitral forum, which is a pri-vate
forum. For that reason, I think that the system needs to be genu-inely
fair, not just appear to be fair. I also don't try to limit the
equitable remedies of the arbitrator. Under Title VII or under our
State Statute, you can get reinstatement, for example, as an equitable
remedy. My advice to employers in drafting these arbitration agree-ments
is: don't limit the remedies; give the arbitrator the power to
order back pay, which is an equitable remedy, to order punitive dam-ages;
which is a legal remedy, to order reinstatement, to order an in-junction
requiring a particular manager to go to harassment training
or valuing diversity training, or whatever the arbitrator in his or her
judgment thinks is important.
Obviously, there are all sorts of issues, and I think the other pan-elists
will get into those as to who pays, how do you choose the neu-tral,
etc. Finally, let me suggest that if you are considering, as an
employer, a mandatory arbitration remedy, our experience, at least in
the forum where I come from where the jury system is scary enough
for employers that will do almost anything (we call it the ABC Rule:
Anyplace But Court; some people call it: Anyplace But California)
consider mandatory mediation as well. The full panoply of ADR rem-edies
is one that could be very useful from the employers' side in these
kinds of disputes.
MARION ZINMAN: Professor Bernhardt brought up three sub-jects
very near and dear to the AAA, and three subjects we dealt with
extensively in developing our national employment ADR Rules.
Those three subjects have to do with what we call the Due Process
Protocols, the method of selecting arbitrators and who pays for the
process. I want to deal with those three issues.
The AAA, quite a number of years ago, developed employment
rules and those rules were based on rules that many of you may be
familiar with. Those were rules dealing with commercial disputes,
business disputes. The AAA has handled employment disputes for
non-unionized employees for many, many years. Certainly more than
the 17 years I've been associated with the AAA. In the years that I've
been associated with the AAA, I have seen literally hundreds of cases
involving executive employment contracts, and those contracts are
sometimes severed by dissatisfaction between the employee and the
employer. What do you do with such cases? You can go to court with
them, particularly if you can find a statutory violation. Or you can
litigate on a contract violation. The problem with litigating on a con-tract
violation is that everybody goes to court and then your dirty
linen is aired in public. This sounds sort of familiar. Many of the
same concerns that happened in a breakup of an executive compensa-tion
agreement are the same concerns that occur to employees in a
company. Maybe you don't want to have this information made pub-lic.
Certainly employers didn't want to have this information made
public. Therefore, in the last few years the AAA processed about 800
cases a year involving executive employment contracts, sales commis-sion
cases, and we are still handling them. They are handled in a form
loosely related to our commercial arbitration rules.
Several years ago, we began to recognize, if we hadn't recognized
before that, that there are issues that come up for employees that may
not be contractual in nature. Certainly there are statutory issues. Dis-satisfaction
with the forums that existed, I'm thinking of the EEOC
particularly, and the New York State Human Rights Commission and
we began to look at this dissatisfaction possibility of business for us, as
something we could do, and had done, quite well. We formed a com-mittee
and task force. We eventually developed a National Employ-ment
Rules, first as a California model. In that California model, we
began to encompass what we called the Due Process Protocol. In-volved
in the development of this Protocol was the American Civil
Liberties Union and their General Counsel, Lou Maltby, consultation
with NELA (and I know Mr. Tobias is a fine representative of that
organization), and employer groups. We worked with everybody, be-cause
we felt that we could do something for both employees and em-ployers
in this very sensitive area.
What does the Due Process Protocols involve? It means that we
don't limit remedies. We provide for discovery, as Catherine rightly
said, through the arbitrator. We provide, at least in our rules, that the
parties may split the fees in arbitration, although we recommend, very
frankly, that the employer pay most of the cost, simply because there
is an uneven balance of pocketbook there. An employee may have a
very justifiable case and be terminated, and may not have any money.
We provide for equitable remedies, that includes anything and every-thing
that you could get in a court of law. Loosely speaking, this is
what the Due Process Protocols provide for through the AAA.
There were systems that we reviewed that wrote in the AAA and
said, "No lawyers present." We won't handle those cases anymore. In
fact, we won't handle any cases in which the parties do not agree to
submit to our arbitration rules, and we have asked employers who we
know, or may know, are developing systems to send them to us, and
we will give them advice and suggestions. We will go in and assess an
employer's system, and what problems they have, and make recom-mendations.
The recommendations we make involve the use of our
rules. That's perfectly natural. We're in an organization to do busi-ness,
and although we're not for profit, we're not for loss either.
How do we select our arbitrators? Our arbitrators have been se-lected
from all over the country by special outside panels. We've
asked very illustrious corporate and individual employee representa-tives
to make recommendations. We screen those selections through
an advisory committee. We select people with very specialized back-grounds.
In fact, each of the regional offices (we have 37 around the
country) has a separate list. In New York State, there is a list of quali-fied
people who have quite a number of years of experience sitting on
both sides of the table, who have very illustrious backgrounds. There
are about 30 arbitrators in the New York Metropolitan area. These
people are then specially trained in how to administer these rules.
Why are they specially trained? You would think they would
know this stuff cold, and some of them do. But some of them have a
specific labor-management background, and these non-unionized is-sues
don't involve a collective bargaining agreement. They involve a
certain kind of procedure that is slightly different from the labor-man-agement
context. You may, for example, need dates very soon, and
we have a number of labor arbitrators who are involved in this system
who have said that they will honor the request for terminated em-ployee
to have a hearing in a couple of months instead of six months,
in some cases. These arbitrators have been known to waive cancella-tion
fees, because you are talking about terminated employees with no
financial wherewithal. We select our arbitrators very carefully.
Who pays for these new processes? In general, our rules provide
that the fees are split. For employees and employers it's generally
$500.00 to get into the system, which means $250.00 each, plus the cost
of the arbitrator. Arbitrators charge their normal fee. In some cases,
they will waive some of that fee if there is a real hardship situation.
We recommend that employers pick up most of the cost, charging the
employee a nominal fee to keep out those people who are going to
register grievances constantly and abuse the system.
This system has been adopted so far by about 100 to 150 employ-ers.
It is a little difficult to tell because I get cases on my desk where I
didn't even know the employer was writing us in ˙ and there we are!
We estimate several million employees are now covered by these
kinds of systems. We certainly recommend that they have internal
procedures first. In fact, we estimate that no more than 2 percent of
the cases that start at the bottom ever come to us, probably less. It
isn't an enormous caseload. As more and more employees get cov-ered,
there will inevitably be more cases, but if you have a good type
internal system, providing for mediation first, most cases, as Catherine
correctly pointed out, will never come to AAA arbitration at all. The
only thing we say, is that if the case is filed we can provide a mediator,
we can provide an arbitrator. If the case does come to us, we have fair
and impartial procedures. Thank you.
PAUL TOBIAS: Ladies and gentlemen I want to thank you very
much. Today is my birthday. I'm the oldest man in the room. I'm 67.
And I thank you for bringing me from Cincinnati, giving me a free trip
to Washington, a free hotel, I got my breakfast paid for, my dinner --
what a birthday present! Its great.
Also, this is a unique opportunity for me. For 38 years I have
been hoping someday I could talk down to about 75 law professors.
I've been waiting. I was beat up pretty bad about 40 years ago by
some professors. I have some wounds. I reserve the right, for those in
the back row, to call on you in the course of this talk. So, be on your
toes. No seriously, I feel very comfortable in this room. All my
problems with law professors are gone. In fact, I really relish this op-portunity
as a representative of the private bar to work with law
professors. I don't think there is enough interaction between the
ivory tower, where you are, and the trenches, where I am. We need
more interaction. I think that would be good for us.
First, I want to discuss voluntary arbitration after a dispute arises.
The plaintiffs' bar favors giving employees the option of going to arbi-tration.
We're all for it. After a dispute arises, the parties can get
together, decide to go to AAA, and resolve the matter in arbitration.
Arbitration is good for many cases. The employer can't get summary
judgment in arbitration. It's usually cheaper and faster than court.
The employee gets an absolute right to tell the story to a neutral party.
Sometimes employees prefer arbitration to court. Voluntary arbitra-tion-
Yes! Also we're all for mediation. I personally don't oppose
mandatory mediation, because it doesn't require the employee to ac-cept
the result. That's something else.
I'm here to talk about mandatory arbitration of statutory claims
set forth in the United States Code, passed by the Congress of the
United States, and on that subject matter-mandatory arbitration-No!
No question, no brainer-No! That's what I'm here to say.
We talked about the jury trial. It's my recollection that the right
to jury trial is set forth in the United States Constitution. The ADEA
permits jury trial. In 1991, not so long ago, the right to jury trial was
mandated in the Civil Rights Act Amendment for Title VII which also
covers the ADA. So, as recently as five years ago, the Congress said,
"Jury trial-Yes! Punitive damages-Yes! Emotional distress damages-Yes!"
Thus statutory rights are litigated in the United States Courts
before a judge trained in the law, under procedures of the federal
rules, subject to an appellate system. The whole panoply of the judi-cial
system, that's what you're entitled to. And employers want to
take it away. Gilmer taketh away-supposedly. Well, I don't think it
did by a long shot.
But certainly, we think that mandatory arbitration is bad. We
fear that timid arbitrators, unlike juries, will not have the courage,
when there is serious wrongdoing, to award the punitive damages, the
emotional damages, and front pay to which the victim is entitled. The
whole system that drives settlements (and 90 percent of the cases are
settled), the reason that employers settle cases, is that they are afraid
of a jury trial, they are afraid of punitive damages. That's why 90
percent of the cases are settled. They're not afraid of arbitration.
Employers never have been afraid of an NLRB hearing, never. The
possibility of reinstatement without backpayĪ that never stopped em-ployers
from firing people. The jury system is what keeps getting
cases settled and keeps the employers honest.
Discovery! In Cincinnati, General Electric Company has one of
these typical arbitration programs. Concerning discovery, you only
get ten interrogatories, you only get the right to inspect five employer
documents, and you only get eight hours total for all depositions.
That's all this particular mandatory arbitration gives you. Now, that's
one of the biggest companies in America. That's the pattern. They're
trying to limit discovery. No plaintiff's lawyer can win a major dis-crimination
case, except the real good ones, without extensive deposi-tions
and detailed information possessed by the Defendant and
unavailable to the Plaintiff. To prove discrimination we must show
what happened to the other fellow or lady. The employee needs to
look at the files of similarly situated coworkers. The employee needs
to review statistical data. Are these arbitrators going to have the
courage to force the employers to disgorge their secret smoking guns?
No! Do you think the Texaco case result would have been the same
before an arbitrator? I don't think so! I think that defense lawyers,
like plaintiffs' lawyers, are scared to death of federal judges. That's
why they tell their employer-clients, "We've got to give these docu-ments."
I tell my clients, if they're hiding documents, "You've got to
give me those documents or you could go to jail." Well, I don't think
any arbitrators will put anybody in jail, or that anybody's afraid of any
arbitrator putting them in jail. But that's what drove the Texaco set-tlement.
And if anti-discrimination policy of the United States means
anything, then the right to all these court remedies is important.
If everybody's got to go to mandatory arbitration, what happens
to the right to utilize government agencies like the EEOC or state
FEP? It appears you can't go there. Also I'm fearful of having no
appeal rights. If you get a wild arbitrator who doesn't know what he's
doing, which will happen, you have really no effective appeal rights in
an arbitration. So, there are a lot of reasons why mandatory arbitra-tion
And incidentally, the Supreme Court of the United States has not
faced up to several legal issues, which it will soon. The purpose of the
Arbitration Act was for commercial disputes not employment dis-putes.
There's a provision in the Act (as you all know) that says, dis-putes
of workers engaged in commerce are not even covered by the
Act. The employers will argue that the exception is just for transpor-tation
workers. Gilmer did not deal with that issue. We think we have
a fighting chance to win that issue in the Supreme Court. Hopefully
the Supreme Court will not be influenced by the so-called docket
clearing policy designed to reduce the case loads of federal judges.
Hopefully the belief that arbitration is wonderful will not dominate
every issue facing the Court. As Gilmer suggests, the United States
Supreme Court is very pro-arbitration, so we may not win that issue.
But there is another issue we surely will win at the United States
Supreme Court level, and that is the "knowing" and "voluntary"
waiver requirement. If you're going to give up your statutory rights, if
the employer says you are required to arbitrate, surely there must be a
truly knowing and voluntary waiver of your procedural substantive
rights under the anti-discrimination statutes. If you're forced to give
up all these statutory rights, there should be an express intentional
giving up. I disagree that if you read and sign an agreement to arbi-trate,
you presume to know everything about the details of what you
are giving up and that all sorts of documents are incorporated by ref-erence.
A broadly worded agreement to arbitrate buried in fine print
in an employment contract should not be read to imply an intentional
waiver of jury trial. Did you know that if you're sexually harassed ten
years from now, that you've given up your right to go to a jury trial in
court? Did you know that if the company fired you ten years from
now for age discrimination that you're giving up your rights to go to
federal court? Did you know that when you signed it? I doubt it!
The test should be, did the employee reasonably know that by signing
the document, there was a waiver of the statutory right to go to court.
I think that employers are going to have to, from now on, make it very
clear to employees exactly what rights they're giving up.
That gets us to the next issue concerning the "voluntary" require-ment.
If an employer says you must give up all your court rights, now
sign it or you're fired or not hired, what are you going to do? You're
going to sign it. It's your job or your civil rights, and you'll take the
job. The economic pressure amounts to duress. In any event, there is
a "voluntary" issue. When you are a current employee and when they
put the agreement in front of you, and they don't give you any consid-eration,
we say that's not a voluntary waiver. The knowing and volun-tary
issues will some day be resolved by the Supreme Court. The Prudential Ins. Co. of America v. Lai 12
case we think will become the
law. You're familiar with that Ninth Circuit case requiring any waiver
to be knowing and voluntary.
The third issue is one that Ted St. Antoine will talk about. It is
my view that if you have to arbitrate, it isn't collateral estoppel or res
judicata in a second proceeding in federal court. If you are forced to
arbitrate, then you get a second bite of the apple in court. Some say it
should depend on how bad the first bite was. If the arbitration was
based on inadequate procedure and produced an unfair decision, you
surely should be able to go into federal court. Perhaps the arbitration
will be entitled to some weight, as per Gardner-Denver, but you
should get a de novo hearing in the federal court.
Everybody is talking and writing about mandatory arbitration, as
if it is common practice. The AAA says we have a couple of million
people subject to it. Our law office receives a thousand calls a year.
We have handled only one mandatory arbitration case. There are
only one or two major non-union Cincinnati employers which require
arbitration. It is still very much a thing of the future. We have 120
million non-union workers out there. There are only a very small per-centage
covered by mandatory arbitration. Therefore, this is a theo-retical
discussion in some sense. It may be twenty or thirty years
before we are really into mass mandatory arbitration. Hopefully
In any event, there are some good things about arbitration.
There are some general advantages to voluntary arbitration, particu-larly
of small damage cases. But mandatory arbitration of statutory
claims, we think, is just plain wrong. An interesting angle is that if
employers are going to have mandatory arbitration of statutory
claims, there may be a creeping creation of a just cause standard. At
present very few non-union employers are willing to create a just
cause standard in their handbooks. Almost none are offering
mandatory arbitration of claims of unfair treatment. Employers are
going to look disingenuous to say to employees, "You have to arbi-trate
your statutory claim but you can't arbitrate your claim of unjust
We think that mandatory arbitration may create an employer
dominated kangaroo court. Clerks of court are often rude and bu-reaucratic,
but at least they act the same to everybody. Nobody owns
the federal clerks. But I am concerned when I see the General Elec-tric
arbitration system and it says that if you have any discovery
problems, go to the G. E. administrator and he will straighten them
out. In other words pre-arbitration procedure tends to be controlled
by the employer to the extreme prejudice of the employee.
Finally, we are concerned that because of the "repeat player"
problem, it will be difficult to obtain neutral arbitrators who under-stand
the law of discrimination and are courageous enough to award
substantial damages in appropriate cases.
THEODORE ST. ANTOINE: Good morning. Well, after hearing
those wonderful pyrotechnic statements by the advocates, one for
management and one for plaintiffs, I would like to think that I was
bringing to you the calm, reasonable, objective solution to what is best
for employee rights with regard to mandatory arbitration. In the in-terest
of full disclosure, I guess I should point out that for the last
twenty-five years or so, I have been engaged in a fair amount of
moonlighting arbitration, and who knows the extent to which that may
affect some of my supposedly objective, third-party consideration.
I am going to put a couple of theses before you this morning.
One is that I think the answer to the question of whether mandatory
arbitration for individual employees is fair, should be made on the
basis of a quite pragmatic assessment of what is best for individual
employees and not on abstract appeals to the sanctity of statutory
rights and of access to a jury. I don't know what would be the result
of a pragmatic assessment of the best interests of individual employ-ees,
and I would be delighted to have some commentary from those of
you who have practical experience in this area, from a somewhat more
disinterested point of view than either a union or a management or an
individual plaintiff's representative. But, I do think that that is the
way the matter should be approached.
Second, and here I put a little weight on the scales, I do think that
in light of overloaded dockets of the federal courts, and the un-derfunded,
understaffed EEOC, at least it seems arguable that it
might be in the best interests of individual employees to have
mandatory arbitration even of statutory claims ˙ if two important con-ditions
could be met. First, that due process guarantees apply to the
procedure; and second, that the arbitrators were authorized to award
the full range of statutory remedies. So, if those two conditions were
met -- due process in the procedure, and the full range of statutory
remedies -- it is arguable that employees would be better off with
mandatory arbitration than with the present regime. At least theoreti-cally,
anti-discrimination legislation entitles them to resort to the
courts, but for the ordinary employee, that may not be the reality.
Let me say a couple of words about my view of two of the leading
Supreme Court decisions. The first is Alexander v. Gardner-Denver Co.,
the famous case in which an arbitrator's decision in favor of the
employer under a collective bargaining agreement was not a bar to the
employee's subsequent claim of racial discrimination before the
EEOC and a federal court. 13 At least on its face that case could read-ily
be limited because the Court emphasized that under the collective
bargaining agreement, the arbitrator in Gardner-Denver was only au-thorized
to deal with the contractual claims. 14 The arbitrator was not
authorized to deal with statutory claims. The Court in Gilmer, the
subsequent case dealing with a claim of age discrimination under an
individual contract of employment, specifically pointed out that dis-tinction
between Gardner-Denver and Gilmer. 15
Second, with regard to Gilmer itself, I think one can read Gilmer
too broadly. Here Paul Tobias alluded to a view with which I agree. Gilmer
is not quite as powerful in its holding on this question of
mandatory arbitration as some have seemed to think. All that really
was involved in Gilmer was whether an employee, before having gone
to arbitration, could be required to arbitrate prior to bringing the
claim to court. In other words, at least on the facts and as a matter of
holding, the Supreme Court could have disposed of that case simply
on an old-fashioned exhaustion of remedies basis. Now, I must say, in
some respects it makes it all the more powerful that the Court pro-ceeded
to go forward and quite elaborately salute arbitration, speak-ing
in terms of substituting arbitration as the forum for the resolution
of statutory disputes. Let me be clear again: Gilmer as a holding
could simply be read to say, "You must exhaust remedies in arbitra-tion
if you have agreed to go to arbitration. You cannot go directly to
the EEOC and the courts." It does not seem, however, in light of the
very powerful dictum, that one can safely conclude that the Court,
when faced with the issues that Paul wants to bring before it, is going
to say, "Well, Gilmer was just an exhaustion of remedies case." The
opinion itself, the language, speaks much more in terms of a ringing
endorsement of arbitration, emphasizing that it is a substitute forum
for the disposition of statutory claims.
In the Austin v. Owens-Brockway 16 case, decided just last year by
the Fourth Circuit in a two-to-one decision, dealing with a collective
bargaining agreement, the court seemed to come very close to sug-gesting
that Gilmer had superseded Gardner-Denver. Again, techni-cally,
I should point out that that was another exhaustion of remedies
case. It wasn't a case where the arbitrator had already decided the
Finally, I am going to join Paul Tobias halfway, with regard to the Prudential Insurance Co.
case, decided by the Ninth Circuit two years
ago. There the Ninth Circuit said that at least the employee's waiver
of the right to go to court had to be knowingly made. 17 It did not go
on to deal with that tougher question of voluntariness in the course of
the waiver. The federal agencies that have been involved in this have
been much more on Paul's side. The EEOC in a policy statement
issued a year-and-a-half ago, July 1995, said that parties must know-ingly,
willingly and voluntarily enter into any ADR proceeding. In
fact, the EEOC went so far as to say that until the actual arbitration
decision was rendered, it would not hold the employee bound. At any
point the employee could escape the ADR proceeding and insist upon
pursuing the claim before the EEOC.
A Regional Director of the NLRB has issued a complaint, I as-sume
practically it was done in Washington, on the theory that requir-ing
employees to sign mandatory arbitration agreements or firing
them for a refusal to do so is an unfair labor practice. So the Board is
weighing in on this as well.
Now let me start dealing with some of what I regard as the prag-matic
considerations. I find it quite significant that a number of very
distinguished federal judges, Judge Harry Edwards of the D. C. Cir-cuit,
Betty Fletcher of the Ninth Circuit, the late Alvin Rubin of the
Fifth Circuit, have all come out over the years with strong statements
endorsing the arbitration of statutory disputes. I should emphasize
they were not stating that mandatory imposition of arbitration agree-ments
would be allowed. They were simply dealing with the merits of
arbitration. They were looking at the fact that the federal courts'
dockets are terribly overcrowded and that arbitrators properly trained
are capable of rendering sound decisions in statutory disputes.
During the past year-and-a-half or so real strides have been made
in trying to provide us with some notion of what constitutes the sort of
due process that ought to exist in any arbitration of a statutory claim,
whether it's mandatory or otherwise. The Dunlop Commission in its
report of December 1994 and the Protocol that was developed by a
wide variety of groups under the sponsorship of the ABA (it included
everybody from the ACLU to management representatives of the
ABA Labor Section, with the National Academy of Arbitrators, and
the American Arbitration Association in between) came up with sur-prisingly
parallel notions of what due process would mean specifically.
Let me just quickly run through the seven different requirements
that these two bodies embraced: First, a jointly selected arbitrator
who knows the law. Second, a simple adequate discovery procedure.
Discovery is necessary in these individual cases where you do not have
the union experience with a particular relationship and the general
grievance procedure to develop the facts. Third, cost sharing to insure
arbitrator neutrality. Fourth, representation by a person of the em-ployee's
choice. Fifth, remedies equal to those provided by the law.
That last is very important. Sixth, an opinion and an award with the
reasons for the arbitrator's decision. And finally, an incursion on the
traditional finality of arbitration awards, judicial review on the law ˙
not the facts, but judicial review on law. That is a very good summa-tion
of the kinds of due process requirements that ought to exist if we
are to even contemplate the notion of making arbitration mandatory.
Now, the Dunlop Commission and the ABA-sponsored Protocol
did diverge on this question of mandatory arbitration. The Dunlop
Commission in terms said, "No. No mandatory arbitration." Clues
suggest there was a bit more discussion within the Commission than
the final report reflects, except for a very interesting line. The Dunlop
Commission, if you read the report closely, does comment that after a
few years of watching the development of arbitration of statutory
claims (this assumes voluntary arbitration of statutory claims), it
might be well for the country to revisit the issue of whether or not we
could safely allow such claims to be subjected to a mandatory arbitra-tion
The ABA-sponsored body, which as I said embraced ABA man-agement
members as well as the ACLU as well as Paul Tobias' organi-zation,
punted -- probably quite properly -- on this question. They
made no determination with regard to what we call pre-dispute arbi-tration
agreements. They did agree that such agreements would have
to be knowingly made. I think everybody can accept the knowing
concept. The issue is voluntariness and whether or not you can ever
have a pre-dispute arbitration agreement that is genuinely voluntary.
This is controversial.
I think that you can all recognize the simple practicalities of the
difference between a pre-dispute agreement to arbitrate and a post-dispute
agreement to arbitrate. If it's post-dispute, the employee re-ally
does not have anything to lose. The employee has been dis-charged.
There is no worry about the job's future depending upon the
goodwill of the employer; the job has been lost. The employee can
make a very free judgment as to whether to stick with the right to jury
trial or to go on to arbitration. It is the pre-dispute case that presents
the difficult question of the inherent pressure of the employer's con-trol
over the job. And it is not just a matter of firing. At stake are all
the future relationships that the job entails -- promotions, job assign-ments,
and all the other subtle ways in which employers can put a
thumb on the scales.
On this pre-dispute/ post-dispute controversy, however, I should
point out there was testimony before the Dunlop Commission by
some very well-respected management representatives that employers
generally are not going to be willing to enter into post-dispute agree-ments
to arbitrate. Their feeling is that at that point, in most cases,
they can sit back and just see what happens. The ordinary employee
with the ordinary claim is not going to have the money to go out and
get an attorney to carry that claim forward. Most run-of-the-mill dis-putes
are simply going to be passed by. It's avoiding the big six-or
seven-figure jury verdict that is the employers' reason for accepting
pre-dispute agreements to arbitrate. Unless employers are bluffing on
this contention that they won't enter into post-dispute agreements to
arbitrate, I think the ordinary employee may very well have the prac-tical
choice of agreeing to mandatory arbitration in advance or not
having a realistic way of prosecuting his or her claim. Remember that
until the EEOC started into this wonderful triage procedure in which
it classifies cases as A, B or C and tosses out a large proportion in a
summary fashion, it was getting 100,000 charges of discrimination a
year and its backlog had soared past that figure.
This morning at breakfast, Paul Tobias, whom I regard as one of
the preeminent plaintiff's attorneys in the country, told us that he ac-cepts
one out of a hundred people who contact his office seeking his
assistance. One out of a hundred. He wants that big, good case -- and
he is entitled to it, he's got that kind of talent. Someone else spoke up
and said that one out of a hundred was a very realistic figure. Well, I
can be a little more precise. One of Paul Tobias' counterparts, a very
fine Detroit plaintiff's lawyer, told me that his secretary actually kept
count, and he averaged an acceptance of one out of eighty-seven peo-ple
who came into his office seeking his assistance. One out of eighty-seven.
Why? Because it is terribly expensive for a lawyer to invest in
a case that may come to naught. One of the realities that must be
faced here is that the present regime is much too expensive and time-consuming.
That is why it is going to be very difficult for the ordinary
man or woman to press forward with a discrimination case in today's
complex and costly environment. These are the practical considera-tions
we must examine before we make a judgment as to the sound-ness
or the lack of soundness of mandatory arbitration, and the
cheaper, faster process it would provide.
1. Gilmer v. Interstate/ Johnson Lane Corp., 500 U. S. 20 (1991).
2. Alexander v. Gardner-Denver Co., 415 U. S. 36 (1974).
3. Id. at 60 n. 21.
4. Austin v. Owens-Brockway Glass Container, Inc., 78 F. 3d 875 (4th Cir.), cert. denied, 117 S. Ct. 432 (1996).
5. 9 U. S. C. ¦¦ 1-14 (1994).
6. These cases are known collectively as the Mitsubishi Trilogy: Rodriguez de Quijas v. Shearson/ American Express, Inc., 490 U. S. 477, 483 (1989) (compelling enforcement of a private
contract to arbitrate claims arising under section 12( 2) of the Securities Act of 1933)); Shearson/ American Express, Inc. v. McMahon, 482 U. S. 220, 262 (1987) (compelling enforcement of a
private contract to arbitrate claims arising under both RICO and section 10( b) of the Securities Act of 1934); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 640 (1985)
(compelling enforcement of a private contract to arbitrate claims arising under the Sherman Antitrust Act).
7. COMMISSION ON THE FUTURE WORKER-MANAGEMENT RELATIONS, U. S. DEP'T OF LA-BOR & U. S. DEP'T OF COMMERCE, REPORT AND RECOMMENDATIONS (1994).
8. See, e. g., Cole v. Burns Int'l Sec. Servs., Inc., 105 F. 3d 1465 (D. C. Cir. 1997).
9. See, e. g., Clyde Summers, Protecting All Employees Against Unjust Dismissal, 58 HARV. BUS. REV. Jan.-Feb. 1980 at 132, 133.
10. The three cases which established arbitration as a virtually unreviewable method of settling grievances under a collective bargaining agreement are known collectively as the Steel-workers
Trilogy: United Steelworkers v. American Mfg. Co., 363 U. S. 564 (1960); United Steel-workers v. Warrior & Gulf Navigation Co., 363 U. S. 574 (1960); United Steelworkers v.
Enterprise Wheel and Car Corp., 363 U. S. 593 (1960).
The system of industrial self government which these three cases endorsed is based largely
on the thoughts of then Yale Dean, Harry Shulman, which the court cited. See Harry Shulman, Reason Contract and Law in Labor Relations, 68 HARV. L. REV. 999, 1016-1024 (1955).
11. 8 Cal. Rptr. 2d 151 (Cal. Ct. App. 1992).
12.cert. denied, 116 S. Ct. 61 (1995).
13. 415 U. S. 36 (1974).
14. Id. at 52-54.
15. Gilmer v. Interstate/ Johnson Lane Corp., 500 U. S. 20, 34-35 (1991).
16. Austin v. Owens-Brockway Glass Container, Inc., 78 F. 3d 875 (4th Cir.), cert. denied, 117 S. Ct. 432 (1996).
17. Prudential Ins. Co. of Am. v. Lai, 42 F. 3d 1299, 1304 (9th Cir. 1994), cert. denied, 116 S. Ct. 61 (1995).