Arbitration systems and negotiations

We consider a model of bargaining by concessions where agents can terminate negotiations by accepting the settlement of an arbitrator. The impact of pragmatic arbitrators—that enforce concessions that precede their appointment—is compared with that of arbitrators that act on principle—ignoring prior concessions. We show that while the impact of arbitration always depends on how costly that intervention is relative to direct negotiation, the range of scenarios for which it has an impact, and the precise effect of such impact, does change depending on the behavior—pragmatic or on principle—of the arbitrator. Moreover the requirement of mutual consent to appoint the arbitrator matters only when he is pragmatic. Efficiency and equilibrium are not aligned since agents sometimes reach negotiated agreements when an arbitrated settlement is more efficient and vice versa. What system of arbitration has the best performance depends on the arbitration and negotiation costs, and each can be optimal for plausible environments.      

Arbitrators’ characteristics and decision-making records,gender of arbitrators and grievants,and the presence of legal counsel as predictors of arbitral outcomes

Labor arbitration helps define employee and employer rights and responsibilities. Evidence indicates that the advocates at arbitration tend to concern themselves with issues unrelated to the facts of the case or to the rights and responsibilities of the parties involved. More specifically, before the hearing, management and union advocates often dwell on issues such as the importance of the arbitrators’ personal characteristics and their decision-making history, the likely effects of the gender of arbitrators and grievants, and whether the presence of legal counsel impacts the arbitral outcomes. The purpose of this study is to examine whether these non-case-related factors actually can be associated with differing awards by arbitrators. This study may be the first in which the arbitrators’ decision-making history (award orientation) is a primary issue. Of all the issues studied, the arbitrator’s disciplinary award orientation is the only one with a consistent impact on arbitral outcomes. We conclude that the energy and resources expended by the advocates concerning non-case-related issues would be better spent in preparing their cases for arbitration and in examining the potential impact of arbitration on the rights and responsibilities of management and its employees.     

The Impact of Compulsory Arbitration on Bargaining Behavior: An Experimental Study

A series of experiments compares bargaining behavior under three different settings: no arbitration, conventional and final-offer arbitration. Under no arbitration, disputes with zero payoffs were around 10%, while the pie was equally split in less than half of the cases. Under conventional arbitration – where the arbitrator is free to choose his award – every third negotiation ended in dispute, evidencing a modified chilling effect. Under final-offer arbitration – where the arbitrator must award the bargainers either one of their final offers – there was only a small increase in disputes, while equal splits doubled to 80%. The experiment shows that final-offer arbitration, despite having lower dispute rates, interferes more with bargaining behavior than conventional arbitration, where bargaining behavior is similar to that seen in the no-arbitration treatment. Under final-offer arbitration, negotiators adjust their bargaining strategy on the arbitrator’s expected award.     

Arbitration of Statutory Employment Discrimination Claims in a Nonunion Environment: A Guide to Procedural Fairness

The previous decade has seen an increasing trend toward the use of arbitration to resolve statutory employment discrimination claims. The enforceability of most private sector arbitration agreements arising in a nonunion setting is reviewable under the Federal Arbitration Act. Such arbitration agreements are most often created by management and become a condition of employment. To represent a feasible alternative to court litigation, employers and employees must have confidence that outcomes achieved through the arbitration process will be enforced by the courts as final and binding upon the parties to the dispute. The extent to which an arbitration agreement adequately protects the procedural and remedial rights of the participants is an important issue affecting the probability that a court will enforce the outcome of an arbitration procedure. This paper reviews guidelines provided by the courts and practitioners to aid in the design of an effective and legally enforceable arbitration procedure to resolve statutory employment discrimination claims arising in a private sector nonunion environment.     

我国体育仲裁司法监督模式选择

从体育仲裁的性质入手,认为体育仲裁制度契约性、准司法性和独立性的特点要求建立体育仲裁司法监督模式;司法监督有利于实现体育仲裁所追求的公正、效率的价值目标;在司法监督模式上,国内学者有着"全面监督论"和"程序监督论"两种不同的理论观点,通过对上述理论的分析,笔者认为它们之间的对立不是绝对的,两者可以在承认当事人意思自治的前提下对是否决定进行法院实体审查这一重要问题达成契合,因此体育仲裁司法监督模式应采取法院原则上不监督体育仲裁实体但允许当事人协议扩大监督权的设计,是切合我国司法制度实际的理想模式。     

ACAS arbitration: a case of consumer satisfaction?

Although arbitration is the least used function of ACAS, it is an important part of the work of the service. A study of the users of ACAS arbitration, conducted by the author, provides evidence to support the view that there is a substantial degree of satisfaction with the arbitration service.     

依据仲裁的社会价值构建中国体育仲裁制度

随着人类体育活动的国际化和商业化,各种体育纠纷越来越多,如何针对不同体育纠纷的特殊性构建适当的解决机制,体育仲裁就是行之有效且运行广泛的一种。与国际体育仲裁相比,公平公正是我国体育仲裁制度所追求的首要价值;经济高效是我国体育仲裁制度所追求的基本价值。     

Legal and Procedural Strategies for Employees Utilizing Arbitration for Statutory Disputes

This article § reviews the current United States law regarding arbitration of statutory disputes in the nonunion employment setting. The article is a literature review and offers no new research findings but rather focuses on the important legal and procedural strategies employees may use throughout the arbitration process. The article specifically advises the reader on selection of an attorney, selection of an arbitrator, selection of a third party administrator, the discovery process, and the requisite hearing procedure. Possible challenges to the arbitration process are also discussed. In addition, the article focuses on the advantages and disadvantages of arbitration from an employee's point of view.     

The Effects of Mandatory Arbitration of Employment Discrimination Claims: Perceptions of Justice and Suggestions for Change

The ability of employers to require employees to submit claims of discrimination to final and binding arbitration in lieu of exercising their statutory rights represents a significant change in public policy. The methods traditionally used by enforcing agencies to investigate discrimination claims provide assistance and intervention that redress power asymmetries between employees and employers. Depriving employees of these enforcement mechanisms and requiring them to use arbitration may have adverse effects on perceptions of justice, both in procedural and distributive terms. We propose that mutuality, equality, and remediality are issues that must be addressed in situations of mandatory arbitration. We also suggest that mandatory arbitration may have other effects including expanding the scope of issues well beyond discrimination claims.     

Sources of delay in grievance arbitration

This study investigates the sources of delay in the grievance arbitration process. Three delay components were examined: delay in proceeding to hearing, delay from hearing to written award, and overall delay. Multiple regression analyses showed that the arbitration hearing format (tripartite panels versus sole arbitrators), the use of legal counsel, and individual arbitrators themselves, were all significant sources of delay. Further, over the twelve-year period examined in this study, the average grievance arbitration case lengthened by about 7.9 days per annum.     

Equity and arbitration in major league baseball

Equity theory argues that workers examine their job performance and salaries relative to workers in comparable situations. If compensation is inequitable, workers may adjust their behavior. We test the hypothesis that an arbitration‐eligible player in Major League Baseball is more likely to file for arbitration and/or proceed to an arbitration hearing if he feels he is underpaid relative to his comparison other. Bivariate probit is used to increase efficiency and correct for the sample bias in estimating decision models within the two‐step arbitration process. The results indicate that equity is a significant predictor of a player's unilateral decision to file but is an insignificant determinant of going to a hearing because of offsetting responses to equity by player and owner. Copyright © 2002 John Wiley & Sons, Ltd.     

Lessons from Down-Under: conciliation and arbitration in Australia*

At a time of increased interest in arbitration, this article provides a review of the Australian system of compulsory arbitration. It outlines the structure and processes of the Australian federal system, the current tensions within it, and some lessons for the UK.     

傅科摆的原理和运行轨迹分析

傅科摆是法国物理学家傅科于1851年在巴黎发明的一种摆,利用摆的运动现象首次用实验证实了地球的自转。本文对傅科摆在水平面内的相对运动轨迹作了综合性的定性分析,并根据傅科摆确定的起始条件,画出其相对运动轨迹曲线。     

Handling dismissal disputes by arbitration

The traditional arbitration process provides an alternative to industrial tribunals for the handling of unfair dismissal cases. In this article, Harcourt Concannon examines the differences between the two approaches using the ACAS experience of unfair dismissal cases taken to arbitration between 1972 and 1977.     

The conciliatory negotiation of change: a case study of the Norwich footwear Arbitration Board experience 1909–1980

The footwear industry is unique in its continuous use of joint local conciliation and arbitration boards to handle changes brought about by new technology and the contraction of its labour force. This case study draws on the experience of one board and assesses the wider lessons of an industry-wide arbitration system.     

Compulsory impasse procedures: recent American experience

According to Ronald Miller, impasse procedures for public sector negotiations in the United States have produced mixed results. While most unions in the public sector do accept arbitration, this outcome may have been achieved by a pattern of arbitration awards which are largely favourable to the unions.     

The effects of mandatory employment arbitration systems on applicants' attraction to organizations

This study draws on organizational justice theory to investigate the effects of mandatory employment arbitration on organizational attraction. Specific attention is given to the characteristics of employment arbitration procedures that moderate the adverse effects these programs have on applicants' intentions to continue with the recruitment process. A total of 389 professional and executive MBA students read simulated employment brochures. Making employment arbitration mandatory was found to have a significant negative main effect on applicant attraction. This negative effect was mitigated when procedures afforded employees more due process considerations and when employees were given a just‐cause protection in return for giving up their right to sue. Finally, this negative effect was greater among minorities than nonminorities. © 2005 Wiley Periodicals, Inc.     

Insights to compulsory arbitration: the Jamaican experience1

Jamaica is no stranger to compulsory arbitration. Its Public Utility Undertakings and Public Services Arbitration Law (popularly known as the Essential Services Law) has been on the statute book since 1952, providing for compulsory arbitration in essential industries. During the period under review in this paper (1952–69) some 79 cases were heard. Additionally, a number of cases involved court litigation and/or illegal direct action by groups of employees or employers. The Jamaican experience has been full. This paper will seek to present and analyse what has happened in the field of compulsory arbitration in Jamaica and draw appropriate conclusions as to the relevance of the findings for other societies.     

Lawyers,gender and grievance arbitration outcomes

Why should the grievant’s gender or the presence of legal representation affect arbitration outcomes? The “chivalry hypothesis” holds that male arbitrators will tend to favor female grievants; its theoretical mirror image, the “evil woman” hypothesis, suggests that female grievants suffer a comparative disadvantage vis-à-vis similarly situated males. However, neither hypothesis (both drawn from criminologists’ studies of judicial sentencing patterns) applies all that well to the grievance arbitration process where, unlike in the court system, the parties themselves select their decision-maker. This is not to say that the grievance arbitration process is free of gender discrimination, only that arbitrators are probably not the source of any pro- or anti-female bias which may be uncovered.