Employee Rights and Employment Policy Journal

LET'S GET A VISION: DRAFTING EFFECTIVE ARBITRATION
AGREEMENTS IN EMPLOYMENT AND EFFECTING OTHER
SAFEGUARDS TO INSURE EQUAL ACCESS TO JUSTICE

By
Laurie Leader and Melissa Burger

Abstract

Courts have increasingly endorsed enforcement of pre-dispute arbitration agreements in employment since the Supreme Court's Circuit City decision. These agreements have the potential to revolutionize employment law and the speed with which employment cases reach closure. Despite the obvious cost benefits of arbitration and some not-so-obvious benefits (e.g., more favorable outcomes to plaintiffs), employers and employees alike are resistant to forego litigation in favor of arbitration.
The article defines the permissible scope of employment agreements since Circuit City and favors arbitration as a viable, cost-effective means to resolve employment disputes. It also proposes a model for district courts to use to refer employment disputes to arbitration.

The model is predicated on a pre-dispute agreement to arbitrate or a post-dispute consent to submit the matter to arbitration. It contemplates the judicial reformation of pre-dispute agreements that violate principles of basic fairness and mutuality, and adoption of the due process protocol for the arbitral process. To insure that the benefits of arbitration are not lost to judicial review, such review is based on a modified "manifest disregard" standard that defers to arbitral fact-finding except for clear error.

While court-sanctioned arbitration is not a panacea for problems that plague the judicial system, it promises to reduce judicial backlog and maximize results. However, without judicial endorsement of the process, it is unlikely arbitration will gain widespread acceptance in the employment community.