Employment Arbitration Agreements: The Case for Ethical Standards for Dispute Resolution System Designers

Authors

Michael L. Russell

First Page

173

Last Page

194

Document Type

Article

Abstract

Dispute resolution design is an emerging field, both academically and professionally. Attorneys, mediators, and arbitrators, the other roles in the alternative dispute resolution process, have codes of ethics which guide their conduct. Dispute resolution designers, however, have no such guidelines. This article uses the example of mandatory arbitration agreements in the employment context to illustrate why this lack of ethical guidelines for dispute resolutions designers is problematic. In recent years, mandatory arbitration agreements significantly impacted employment law and litigation. The two most problematic provisions that often appear in mandatory arbitration agreements in the workplace context are cost sharing provisions and class action (or multi-party) waivers. Courts have been hostile to efforts to minimalize the impact of class action waivers in arbitration agreements, and arbitration services have been powerless to ease their impact in light of the developing jurisprudence. This paper will examine this issue and explore how the enforceability of mandatory arbitration in employment cases has evolved through the courts. The paper will also discuss a possible path to overcoming the negative impact of these agreements and propose a modification in the approach of dispute resolution designers that would provide a possible remedy.

Recommended Citation

Michael L. Russell, Employment Arbitration Agreements: The Case for Ethical Standards for Dispute Resolution System Designers, 21 Pepp. Disp. Resol. L.J. 173 (2021)
Available at: https://digitalcommons.pepperdine.edu/drlj/vol21/iss1/6