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Cardozo Journal of Conflict Resolution

Abstract

This Note traces the development of voluntary and mandatory arbitration in the United States, including the reasons for the rise in arbitration and the implications for Americans' civil rights. In voluntary arbitration, an employee agrees to arbitrate a workplace dispute instead of litigating a claim. Mandatory arbitration, in contrast, "requires an employee, as a condition of employment, to forego all access to a jury trial and use arbitration in place of a judicial forum for resolving statutory and contractual claims." The use of mandatory arbitration, particularly in employment disputes arising under Title VII, has increased dramatically since 1991 as a result of the enhanced remedies provided under the Civil Rights Act of 1991. In addition to explaining why arbitration has become more common, this Note includes an overview of Supreme Court case law and federal statutes related to mandatory arbitration. This Note then provides arguments in favor of and against mandatory arbitration, ultimately averring that the problems associated with mandatory arbitration far outweigh its perceived benefits. For instance, supporters of mandatory arbitration claim this is a fast and cost-effective way to settle workplace disputes. In response, opponents contend that arbitration erodes employees' rights while sacrificing justice in the name of efficiency. Arguing that compulsory arbitration threatens to harm employees' basic civil rights protections, this Note ultimately posits that the need for arbitral reform is clear. Finally, this Note suggests that allowing the courts to assist in discovery, or permitting them to overturn an arbitral award if there is a serious irregularity, can permit the continued use of arbitration, while still preserving Title VII protections. These changes must be implemented immediately if our statutory and civil rights are to remain intact.

Disciplines

Dispute Resolution and Arbitration | Law

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