History and Background of Alternative Dispute Resolution

While some employment arbitrators may be more knowledgeable and less fickle than juries, and while the cost of arbitration may be lower than that of a court trial, arbitration is not necessarily all that it has been cracked up to be. In fact, some experts and practitioners believe that mandatory arbitration encourages frivolous claims and, in the long run, does not save money at all. (p. 1) Spangler (2003) articulated several other concerns he had regarding the privacy of ADR outcomes.

Because these outcomes are private and not reviewed or recorded in the public record, they are not exposed to any public or legal scrutiny. He goes on to state that although the use of ADR may encourage compromise and quick settlements between parties, compromise may not necessarily have been in the disputants best interests. Some type of informal process or means to settle disputes between disputing parties has always existed. From the childhood disputes in the sandlot to modern times, people have incorporated some means of settling disagreement in court.

Both Barrett and Barrett (2004) and Fazzi (2005) found historical evidence to support that recorded negotiations began sometime around 1400 BC with the Amarna system of International relations. There is additional evidence that ancient peoples of many different nations and cultures utilized some type of ADR to settle a variety of disagreements all throughout history including trade, matters of diplomacy between nations, peace treaties, and a myriad of other disputes (Barrett and Barrett, 2004).

In the late 19th century, in response to the ongoing disputes between labor and management, Congress passed legislation aimed at settling collective bargaining disputes. Later the Board of Mediation and Conciliation and the Federal Mediation and Conciliation Service were created to assist with mediating railway and other labor disputes. In 1913, the Newlands Act was created to assist in solving collective bargaining disputes through negotiation and arbitration agreements.

Mediation was not conceived as an alternative to adjudication. It was an alternative to strikes and ensuing economic disruption, which occurred when unassisted settlement negotiations failed (Superior Court of Delaware, n. d. ). While mediation goes back thousands of years (Barrett and Barrett, 2004, p. 1) the movement toward ADR in the United States began after World War I, and reached its first milestone with the passage of the first modern arbitration statute in New York in the mid 1920s (Lectric Law Library, n. d. , ¶ 27).

As a result, the American Arbitration Society of America (AAA) was formed in 1926 (American Arbitration Association, 2008). Soon many other organizations, both pubic and private, were formed to assist in solving conflict between labor and management including the National Mediation Board (NMB) in 1934, and the National Labor Relations Board (NLRB) in 1935. Members of the NMB mainly mediated conflict between the airline and railway industries while members of the NLRB, were designated by Congress to mediate employee-initiated disputes in the private sector (Barrett and Barrett, 2004).

As the use and utilization of ADR processes have grown in the United States, Spangler (2003, ¶ 3) pointed out that the introduction of new laws protecting individual rights, as well as less tolerance for discrimination and injustice, has led more people to file lawsuits in order to settle conflicts. After the enactment of the Civil Rights Act of 1964, individuals had a legal forum to bring disputes in response to discrimination in the workplace based upon race, sex, or national origin (Barrett and Barrett, 2004).

These circumstances as well as society's tendency to be more litigious led to the EEOC's creation of a mediation program in 1991. After an initial test period and meeting with success at each of the four predetermined test field office locations, it was determined that ADR was a workable solution to traditional means of settling employee-initiated EEO disputes. Then in "1995, EEOC adopted its policy statement on ADR setting forth certain core principles for an ADR program.

Following development of the program's operational framework in 1998, and receipt of start-up funding in its FY 1999 appropriation, EEOC's ADR mediation program was fully implemented in April 1999" (EEOC, 2003, ¶1). Identifying a Need for Change During the 1960s, President John F. Kennedy recognized the need to enact civil rights legislation in order to settle the civil strife created by racial discrimination and segregation in almost every segment of American society, including the workplace and employment practices. After Kennedy's assassination in 1963, President Lyndon B.

Johnson, in the name of John F. Kennedy, championed the passage of a civil rights bill intended to eliminate the racial discrimination that was tearing the country apart. Upon passage by the House and the Senate, President Johnson signed the Civil Rights Act of 1964 into law July 2, 1964 (Barrett and Barrett, 2004). The new law prohibited discrimination based on race, color, sex, religion, or national origin and paved the way for the establishment of the EEOC as a watchdog organization one year later to enforce the law and to counter discrimination in the workplace and in employment practices.

Unfortunately, the newly formed organization was provided with little or no enforcement jurisdiction. "Because of its lack of enforcement powers, most civil rights groups viewed the Commission as a 'toothless tiger' (EEOC, n. d. , ¶ 3)". The five-member, bipartisan commission was only responsible for receiving and investigating complaints of discrimination and for forwarding those complaints to the Department of Justice for resolution. In the first year of its existence, the newly formed EEOC received 8,852 complaints (EEOC, n. d. , ¶ 1).

Despite its limited authority and power, members of the commission were very effective at identifying and assisting aggrieved individuals in settling employee-initiated EEO complaints. Through conciliations and by assisting private litigants in federal court through its robust amicus curiae program (in which EEOC filed "friend of the court" briefs interpreting the law), EEOC obtained redress for thousands of individual workers who had been victims of discrimination (EEOC, n. d. , ¶ 3).