Arbitration

Class 1

Administrative

Give quiz

Review Factors that shape whether mediation

occurs

Mediation and Impartiality

Mediation Outcomes

The truck and tire negotiation

Today

I. What is ArbitrationII. Employment Arbitration and

other contracts of adhesionIII. Due ProcessIV. The Due Process Protocol

I. What is arbitration?

Assistance to two (or more) disputing parties by a third party who has the authority to make a binding decision

Voluntary versus compulsory arbitration

II. Employment Arbitration and other Contracts of Adhesion What is a contract of adhesion?

Examples? Example – Moving companies

Do you have a choice? What is your alternative?

Many employers now routinely require all employees to sign a contract agreeing to arbitrate any and all employment disputes

Involves giving up any right to sue, even over disputes involving statutory rights

Do you have a choice in signing such an agreement?

II. Statutory Rights What are statutory rights? Can you provide examples of statutory rights

you might have in your relationship with Your neighbors? Your family? Your students (if you are a teacher) or your

teacher (if you are a student)? Other examples?

Are you or can you be required to arbitrate any disputes of this kind?

II. Statutory Rights

Examples that might become subject to dispute at work? Discrimination Entitlement to reasonable accommodation Entitlement to minimum wage or overtime

pay Pension protection Termination bonus

II. Statutory Rights Example – The case of Jamie Leigh Jones Background and the Issue The employer claims she waived her right to

sue in signing her 2005 employment agreement requiring that she arbitrate any workplace disputes

Jones asked a federal judge to disregard the arbitration agreement

Since then law has changed, forbidding military to contract with companies that require employees to arbitrate sexual harassment claims

III. Due Process What is “due process?” Why is it a special concern with pre-

dispute arbitration agreements at work? Is your employer obliged to honor the

rules of “due process” in her/his dealings with you?

What “due process” rights would you have if you sued your employer?

IV. Due Process Protocol 1995 Due Process Protocol What did protocol require?

Right to representation by someone of the employee’s choosing

Right to discovery under arbitrator’s supervision Training for arbitrators in requirements of statutes

involved Employer to pay most costs but division of costs not

disclosed to arbitrator Arbitrator can impose any remedy available in court Awards final and binding

Next Time

Variations on the theme of arbitration

Arbitration

Class 2

Administrative Return quiz

Collect critique 4

Second negotiation exercise begins next class

Dolphy Day – check announcements

Review What is arbitration? Contracts of Adhesion and Pre-

dispute Arbitration Agreements Statutory Rights and Due Process The “Due Process Protocol” for

employment arbitration

Today

I. Recent Cases

II. How do arbitrator’s decide cases?

III. What incentives do these alternative decision models create?

IV. The Goldberg Model

I. Recent Court Cases

What should be the law in this area?

When should employers be able to compel arbitration?

When should employees have the right to go to court?

How about customers of moving companies? Building contractors?

I. Recent Court Cases

Skirchak v. Dynamic Research Corp.

Seawright v. American General Financial Services

Brady v. Williams Capital Group

II. How Do Arbitrators Decide Cases?

Suppose arbitrators “always” compromise between the positions of the disputants?

Suppose arbitrators decide cases by a set of principles?

Suppose arbitrators decide cases randomly?

III. What incentives do these alternative decision models create?

Compromise?

Principles?

Random decisions?

Example

One friend “owes” another $1000 That friend has refused to pay it

back, saying it was a gift The lender claims it was a loan but

that she has lost the IOU indicating that

What will the arbitrator do?

IV. The Goldberg Model How is the Goldberg approach different

from conventional arbitration?

What is the reason for this modification?

Example Negotiating a marital separation

The background The principles the arbitrator uses

Will the parties be able to reach an agreement? What will the agreement look like? Why?

Divide class and have them attempt to reach agreement

Information for the Case The background

Two children 10 and 6. Both parents want custody of the children Husband and wife both work outside the home Husband earns 20% less than the wife (He earns $40,000 and she

earns $50,000) They have a house with worth $135,000 with $100,000 still to pay on

the mortgage

The principles the arbitrator uses Mothers retain primary physical custody of children with visitation

rights for the father The non-custodial parent must pay child support of $500 per month

per child Non-custodial parent must pay alimony only if after child support

he/she earn at least 10% more than the custodial parent. Must pay half of all amounts over that 10% more

Custodial parent must pay alimony if before child support he/she earns at least 100% more than the non-custodial parent. Must pay half of all amounts over that 100% more

House remains with custodial parent and each parent must pay half of mortgage and taxes until youngest child is 18 at which point the house will be sold and proceeds divided equally

Example Parent insists child (16 years old) be home

by midnight on weekends Child argues for 2:00 AM curfew Parent insists child mow the lawn and

shovel the driveway Child argues for payment for those chores Arbitrator rules Will parties negotiate before

implementation of the award? What outcome?

Next Time

Begin 2nd negotiation exercise

Begin Topic of Arbitration Variations after the break