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impartial arbitrator who has expertise in employment disputes.^237
Private arbitration can be mandatory or voluntary. In a voluntary
arbitration, either party may choose to initiate arbitration.^238 If an
employment contract contains a mandatory arbitration clause, the
workplace-related dispute must be resolved in private
arbitration.^239 Moreover, arbitration can be binding or
nonbinding. Most arbitration proceedings are binding and legally
enforceable, and the result is appealable only in extremely
limited circumstances, such as fraud or collusion.^240 In a
nonbinding arbitration, if either party is dissatisfied with the
arbitral decision, he may still file a complaint in court.^241
B. Arguments for Arbitration to Resolve Employment
DisputesProponents of arbitration in workplace disputes argue that it
provides a more cost-effective, timesaving, and accessible
resolution. In fact, some argue that arbitration could improve the
“rank-and-file employee’s” access to justice through reduced
costs.^242 Some have even suggested that, for employees earning
below $60,000, arbitration is, unlike litigation, a “plausible
dispute resolution option.”^243 Indeed, studies have shown that an
(^237) Id. The AAA maintains a roster of employment arbitrators and
mediators and offers arbitration services. See AM. ARBITRATION ASS’N,
ALTERNATIVE DISPUTE RESOLUTION SERVICES FOR NEGOTIATED
EMPLOYMENT CONTRACTS 2 (2009), available at http://www.adr.org/aaa/
ShowPDF?doc=ADRSTG_008048.
(^238) AM. ARBITRATION ASS’N, REPRESENTING YOURSELF IN EMPLOYMENT
ARBITRATION: AN EMPLOYEE’S GUIDE 1 (2006), available at
http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_004412 [hereinafter
REPRESENTING YOURSELF].
(^239) See Feingold, supra note 169, at 283.
(^240) Arbitration Defined, supra note 236; see also REPRESENTING
YOURSELF, supra note 238, at 1, 6.
(^241) See Arbitration Defined, supra note 236.
(^242) Maltby, supra note 235, at 63. (“By reducing the costs, private
arbitration holds the potential for bringing justice to many to whom it is
currently denied.”).
(^243) Alexander J.S. Colvin, Empirical Research on Employment
Arbitration: Clarity Amidst the Sound and Fury?, 11 EMP. RTS. & EMP.