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and resolve the dispute before a third-party neutral decision-
maker, who is removed from the normal chain of command.^252
This form of procedural justice reinforces both the employer and
employee’s perception of fairness and trust in the relationship.^253
It can also “inject an external standard of fairness” to address
“abuses of hidden authority” in the workplace.^254
Supporters of arbitration also contend that employers are not
at an advantage in arbitration merely because they repeatedly
access the service.^255 Known as the “repeat player effect,” critics
of arbitration assert this theory to demonstrate the power
imbalance between an employer who routinely uses arbitration to
resolve employment disputes and an employee who is accessing
the service for the first time.^256 However, studies neither prove
nor disprove the “repeat player” theory.^257 One study revealed
that even in a highly impartial private arbitration system,
employees still prevailed in forty-three percent of cases over a
three-year period.^258 Another study found that, in mandatory
private arbitration where the AAA, a nonprofit organization, did
not dismiss the claim as meritless, there was no evidence of the
“repeat player effect” against employees, including those of
Workplace, 16 OHIO ST. J. ON DISP. RESOL. 467, 471–72, 477 (2001).
(^252) Id. at 471–72.
(^253) Id. at 479–82.
(^254) Id. at 487. “Hidden authority” can come in the form of cliques
between coworkers or patronage networks that impose invisible authority onto
the workplace. Id. at 486–87.
(^255) See Sullivan, supra note 166, at 319–20.
(^256) Id. at 319 n.235; see also Jean R. Sternlight, Creeping Mandatory
Arbitration: Is It Just?, 57 STAN. L. REV. 1631, 1650. For further discussion
of the “repeat player effect,” see infra Part V.C.
(^257) Professor Lisa Bingham of Indiana University conducted several
studies on cases decided between 1993 and 2000, and could not empirically
prove the “repeat player” theory or its causes. See Elizabeth Hill, Due
Process at Low Cost: An Empirical Study of Employment Arbitration Under
the Auspices of the American Arbitration Association, 18 OHIO ST. J. ON
DISP. RESOL. 777, 785–87 (2003).
(^258) Maltby, supra note 235, at 50. The study focused on a private
arbitration system established by the securities industry that “has been highly
criticized for its impartiality.” Id.