The following is an open letter to Arizona Attorney General Mark Brnovich.
One of your sisters at the Bar (the State Bar of Arizona, that is) here. I have been meaning to write you for months. I saw your name, right there at the top of page 3, on the letter signed by the attorneys general and chief legal officers of all 50 states, the District of Columbia, and five U.S. territories. The letter was dated February 2018, a time when sexual harassment scandals were exploding across our nation’s public and private industries.
I came across the letter just as I completed the training program that was my last step in achieving a long-sought professional goal—membership on the Roster of Arbitrators of the American Arbitration Association (AAA). So you can understand why I was a bit dismayed by the letter from your exclusive membership organization, the National Association of Attorneys General (NAAG—I have always thought it fitting that the acronym is pronounced “nag”).
The NAAG letter was addressed to the leadership of Congress, asking them to enact legislation to “free” victims of workplace sexual harassment “from the injustice of forced arbitration and secrecy.” The letter said, “Victims of such serious misconduct should not be constrained to pursue relief from decision makers who are not trained as judges, are not qualified to act as courts of law, and are not positioned to ensure that such victims are accorded both procedural and substantive due process.”
Not My Experience
I have represented clients before judges and arbitrators for nearly 30 years. While the quality of decision making varies among both judges and arbitrators, in my experience the range from good to bad has been much broader with judges than arbitrators. That’s because AAA, which is a not-for-profit public service organization, and other groups that administer employment arbitrations are selective about putting on their rosters only professionals knowledgeable about the law at issue in the dispute and the workplace and employment environment. Then they train them in being arbitrators.
My training earlier this year was among the best I have had since law school. It was interactive, with extensive role playing among the nine-member class; all of us were lawyers with many years of experience as advocates in employment cases in courts and arbitral forums. The emphasis of the training was ensuring the fairness and efficiency of the process and learning about resources and techniques available to help us do so.
This is not a new emphasis on fairness, as employment arbitrations have been conducted since 1995 under due process protocols that AAA developed using a special task force with representation from management, labor, civil rights organizations, and government agencies. Key provisions are the right to all information reasonably relevant to the claims and mutual selection of an independent and impartial arbitrator empowered to grant whatever relief would be available in court under applicable law.
Not Inherently Secret
The NAAG letter also argues that the “secrecy requirements” of arbitration perpetuate the “culture of silence that protects perpetrators at the cost of their victims.” It is true that arbitration is a process conducted in private, while court is conducted in public. But there is nothing inherently secret about arbitration, as the parties (but not the arbitrator) always have a right to disclose details of the proceeding, unless they have a separate confidentiality agreement.
The bipartisan legislation that was introduced in both houses of Congress just before the NAAG letter was issued has stalled, for now. Should it start moving again, however, I hope that you will reconsider your support for any law that would override agreements between employers and employees to resolve sexual harassment claims through a fair and efficient arbitration. There are knowledgeable and well-trained people like me out here committed to providing an impartial avenue to justice as a speedier alternative to our overburdened courts.