Arbitration: then (in a Michael Crichton novel) and now

The late Michael Crichton had an interesting contrarian streak for a popular fiction novelist. In one of his last novels, State of Fear, he stuck his thumb in the eye of the global warming/climate change “consensus” (it remains the only novel I remember reading that had footnotes). 

Readers saw his contrarian streak a decade earlier, too, in Disclosure which also became a motion picture featuring Michael Douglas and Demi Moore. Dislosure hit shelves at a time when sexual harassment was taking a prominent place in news media reports about the corporate world but, in a twist, the plot centered on a Machiavellian ploy by a female executive to use harassment allegations to edge out a male counterpart.

Disclosure wouldn’t give us a very interesting column on sexual harassment since the harassment details are fairly pedestrian a few decades later. Disclosure, however, was interesting for another reason: The company, the female executive, and the accused didn’t play out their dispute in a courtroom drama, but during employment arbitration in a stale, anodyne law firm conference room. “Alternative dispute resolution” was a new legal trend at the time (hey, lawyers can be edgy, too!) and what better setting to explore a cutting-edge practice than Seattle in the early ’90s?

Two decades later (boy, was that hard to write), employment mediation has grown up (translated, the Supreme Court has said a few things about it) so it’s worth some time to see how mediation’s promise stacked up against its record in reality:

• First, arbitration won people over (not the least of which were five Supreme Court justices).  Over the last several Supreme Court terms (particularly since 2010 with Stolt-Nielsen, S.A. v. AnimalFeeds Int’l Corp.), the Supreme Court has taken several opportunities to approve of mediation for dispute resolution as opposed to requiring parties to litigate in a court of law.  This year, in American Express v. Italian Colors Restaurant, the Court approved of waivers for class and collective actions.

• Second, arbitration may have overstated its cost savings but has proved to have undeniable advantages. Anecdotally, I hear from arbitrators that they don’t believe they save the parties in litigation costs or maybe even time, but the advantage of a (supposedly) neutral, professional, and dispassionate fact-finder cannot be overemphasized.

Therefore, the cutting-edge process we saw in Disclosure is all grown up now. I think we’re all the better for it, too.

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  Matt Gilley, FordHarrison
  Licensed in North Carolina, South Carolina, and Georgia, Matt Gilley counsels employers throughout the region on a full spectrum of federal and state labor and employment matters.

  He has notched wins for companies in trial, arbitration, and on motions.  He has substantial experience handling complex litigation in which multiple parties are involved. Find him on LinkedIn here.