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

November 01, 2013 3 COMMENTS

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.