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Employment Arbitration and Transparency - What are your thoughts?

Would concerns about employment arbitration be altered if there were greater transparency? How could that be accomplished?

Please provide your thoughts/comments below.

Comments (4)


Nothing can be done to alter the opinions of people who are already locked in. Employment arbitration covers a lot of territory, including non-compete cases and executive and professional employment contracts. Generally, none of the parties to these cases want them to be publicly visible. In my experience, it's also not much of an issue the typical wage-and-hour or discrimination case. "Transparency" only rises to the top in a case where someone thinks he or she can embarrass the other party into a more favorable settlement. That party is not concerned about influencing the arbitrator, who is going to know about the alleged unsavory conduct in any event.

My answer assumes that "transparency" in the question means "public". If the word is being used in some other sense, pardon me.

Not sure how the inquiry defines “transparency”, but I agree that most parties appreciate the confidentiality associated with arbitration. Although it might help the public feel more assured that the process is fair and efficient if more general information is shared with the media- especially when major court cases affecting arbitration are decided. Rather than allowing media personalities define the narratives about arbitration, I’d like to see more senior managers from the various tribunals appearing on national news programs engaging and educating the public about the case, arbitration generally, and the benefits of choosing ADR over traditional adjudication of disputes.

Judge Gerald Harris :

I assume the concern referenced in the question is that felt by employees who may be required by the terms of their employment to submit their grievances to individual arbitration. Presumably that concern is premised on the perception that arbitration is likely to favor the employer and that an unfair result may be encouraged and shielded by the confidentiality of the proceedings. Without commenting on the accuracy of the described perception, it would seem likely that an open proceeding would be somewhat reassuring to the employee. That should be accomplished by affording the employee the right to elect an open proceeding.

Stuart M. Widman:

With a committed and thoughtful arbitrator, I have no "concerns" about employment arbitration that greater transparency would cure. Both sides would get the "right" call in that circumstance.

My only other "concern" is that class arbitrations of employment claims may be barred by clauses of the employment agreement and under current Supreme Court jurisprudence. I would like to see that changed so individual employees have better chances to address legitimate claims.

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