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External Features of the Conflict Managment System Continuum
This document discusses the external features of conflict management systems for resolving workplace disputes. External features involve experts or outsiders and are typically more expensive options used later in the dispute resolution process. They can include external mediation, advisory arbitration, binding arbitration, or legal consultation. The document examines stakeholders' views on these external options and best practices for designing employment arbitration provisions, such as arbitrator selection procedures and standards of evidence. It also reviews qualifications and ethical standards for workplace mediators and arbitrators.
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External Features of the Conflict Managment System Continuum
- 1. Emerging Systems forManaging Workplace Conflict Chapter 6 Design of Conflict Management Systems: External Features
- 2. Conflict Management System Continuum Conflict Mgmt. Systems Internal Features: - More cost-effective - used in early resolution phases - less invasive to employees External Features: - More expensive - used in later resolution phases - impose solutions on employees - Involve experts/outsiders
- 3. External Features Advantages: • Greater knowledge/expertise • More cost effective • Available on short notice • Presumed objectivity give more credibility
- 4. External Design Options • External Mediation • Advisory (Nonbinding) Arbitration/Hearings • Fact Finding with a Recommendation • Final and Binding Arbitrations • Concerns about Arbitration • Legal Consultation Benefits • Employee Costs for Mediation and Arbitration by External Neutrals • Employee Costs to Initiate Mediation or Arbitration • Cost Sharing in Fees of the Mediator or Arbitrator
- 5. Stakeholders Views •View from the Plantiff Bar • View of the EEOC • View of the National Academy of Arbitrators • The Dunlop Commission on Worker- Management Relations • The Due Process Protocol on Employment Arbitration
- 6. Legal Challenges toMandatory Predispute Arbitration • Challenges Based on Contract Defenses • Adequate Consideration • Validity of Adhesion Contracts • Validity of Ambiguous Language • Knowing and Voluntary Agreement to Arbitrate • Challenges Based on Unconsionability • Cost to Employee • Restrictions on Discovery • Restrictions on Scope of Remedy • Employer Control of the List of Arbitrators • Form of the Award
- 7. Best Practices inDesign of Employment Arbitration Provisions • Scope of Disputes Subject to Arbitration • Exclusivity • Requirement to Attempt Mediation Prior to Filing a Demand • Time Limit to Initiate Arbitration • Right to Representation • Initiation of Arbitration • Selection and Authority of the Arbitrator • Venue and Governing Law • Prehearing Discovery
- 8. Best Practices inDesign of Employment Arbitration Provisions • Subpoenas and Documents • Order of Presentation • Standard and Burden of Persuasion • Evidence and Argument • Allocation of Arbitrator Expenses • Form of the Award • Record of Proceeding • Damages and Relief • The Uncertainty of Predispute Mandatory Arbitration
- 9. Workplace Neutrals: Qualificationsand Standards • The Employment Mediation Profession • The Employment Arbitration Profession • Ethical Expectations and Qualifications in Mandatory Employment Arbitration • Sources of Workplace Neutrals
- 10. Workplace Neutrals: Qualificationsand Standards • The Employment Mediation Profession • The Employment Arbitration Profession • Ethical Expectations and Qualifications in Mandatory Employment Arbitration • Sources of Workplace Neutrals