ADR is a process utilized to settle disputes between parties in lieu of traditional litigation or lengthy court proceedings. Most ADR options include a disinterested third party trained in the process of acting as a negotiator between disputing parties allowing participants to arrive at a mutually agreed upon settlement. Spangler (2003, ¶ 1) explains, "The use of ADR processes usually results in the resolution of disputes in a way that is less formal and often more consensual than is done in the courts.
" Fazzi (2005) found, Negotiation is the root of all ADR forms. At its core, two people simply talk about a problem and attempt to reach a resolution both can accept. In this sense, it can be said that ADR started at the dawn of time. (¶ 6) Some of the most common forms of ADR processes include third party investigations, mediation, negotiation, arbitration, fact-finding, ombudsman, and peer review.
Though it may be a voluntary option for some organizations employers often mandate the use of ADR as a precondition to employment for new hires or continued employment for current employees. At times, the use of ADR may be mandated by the court, requiring that disputants attempt to resolve issues through ADR processes before litigating the dispute more formally in court.
The intended purpose of utilizing ADR programs and processes is to provide employees and employers with a more efficient and effective means of settling employee-initiated complaints outside the courtroom. The EEOC (2005) points out that as litigating EEO complaints becomes increasingly more costly, adversarial, and lengthy, the government has promoted the expanded use of ADR programs as a means of settling disputes in a less formal manner rather than litigate disputes in the courtroom.
Alternative Dispute Resolution vs. Traditional Litigation Much of the literature supports the idea that usage of ADR programs in the workplace has resulted in improved efficiency and effectiveness in resolving employee-initiated EO complaints when compared to traditional administrative and litigation processes. Senger (2003) supported this theory when he stated, "Used properly, ADR can provide fast and cost-effective results while at the same time improve workplace communication and morale" (p. 7).
However, there are growing arguments by professionals in the field that disagree with the purported successful use of ADR processes and argue that dissimilar results have been realized in both the public and private sectors of the workplace. Janove and Parauda (2004), and the EEOC (2004, 2003) have all indicated that the utilization of ADR methods are a continuously developing and evolving process that benefits both employee and employer, by decreasing costs and time involved resolving disputes while promoting improved future relations between disputants.
Fracaro (2002) pointed out that by allowing employees more power over the decisions that affect them, they in turn are better motivated, more productive, and less apt to litigate problems that arise in the workplace. Whereas traditional litigation requires that the parties involved in a dispute adhere to the decision adjudicated by a judge, ADR processes allow both parties to derive a mutually beneficial agreement in settling their differences. Patterson (1988) reiterated the need for ADR processes as a means for modern organizations to reduce the time and costs associated with traditional litigation.
Specifically, through ADR processes, she highlighted the importance of the ombudsman in acting as a fair and impartial element in the mediation and arbitration process and stresses the necessity for objectivity when negotiating employee and employer related disputes. Not everyone agrees with this concept, however, and in fact, some feel that ADR processes do not provide a fair and impartial arena for workers to resolve employee-initiated complaints. Spangler (2003) asserted, Some critics have concerns about the legitimacy of ADR outcomes, charging that ADR provides "second-class justice.
" It is argued that people who cannot afford to go to court are those most likely to use ADR procedures. As a result, these people are less likely to truly "win" a case because of the cooperative nature of ADR. (¶ 8) Still others feel that ADR is just as costly as litigating complaints and that in the end ADR provides no better forum for settling disputes than the courtroom. Still others argue that settlements derived from utilizing ADR programs favor the employer citing that employees may feel pressure to settle for less than had they brought the complaint to court.
Hirshman (2001) stated that ADR programs are skewed in favor of the employer and that because of the U. S. Supreme Courts decision to reinforce an employer's right to require mandatory arbitration of its workers, arbitration may be seen as adversarial when employees are forced to submit to the process. In light of these and other findings by professionals in the field, companies are reevaluating their ADR programs and questioning if alternative means of settling disputes are really providing the cost and time savings promised by proponents of the process.
Closky (2002) observed, "Many organizations are finding that arbitration may be the wrong cure for the wrong ills and the side effects can be costly" (¶ 21). Other issues arise when employees are required to sign mandatory arbitration agreements as a precondition to employment or continued employment with an organization, or when there is little or no confidence in the selected arbitrators or third party neutrals by employees.
Successful arbitration depends on both sides perceiving their arbitrator as fair and neutral (Salvatore, 2002) and any effort to compel employees to utilize a certain form of ADR is wrong (Fitzpatrick, 1994). As a result, many employers seem hesitant to implement new ideas and processes within their organizations for fear of losing or chasing away good employees. Shultz (2005) cautioned,