Do Alternative Dispute Resolution Procedures Disadvantage Women and Minorities?
Do Alternative Dispute Resolution Procedures Disadvantage Women and Minorities?
Charles Craver 0
0 George Washington University Law School , USA
Follow this and additional works at: https://scholar.smu.edu/smulr Part of the Civil Rights and Discrimination Commons, and the Dispute Resolution and Arbitration Commons Recommended Citation Charles Craver, Do Alternative Dispute Resolution Procedures Disadvantage Women and Minorities?, 70 SMU L. Rev. 891 (2017) https://scholar.smu.edu/smulr/vol70/iss4/6
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Article 6
ALTERNATIVE
DISPUTE RESOLUTION
PROCEDURES
DISADVANTAGE
WOMEN
AND
MINORITIES?
Charles B. Craver*
When different legal controversies arise, parties frequently employ alter
native dispute resolution procedures to resolve them. Yet some members of
ethnic minority groups and women may seek judicial proceedings out of a
concern that their ethnicity or gender may undermine their ability to
achieve beneficial bargaining outcomes through ADR. This article
addresses the real and perceived challenges of ethnic minorities and women in
ADR. It draws upon decades of research into dispute resolution bargaining
processes to illustrate that most traits associated with ethnicity and gender
are irrelevant today with respect to ADR. When persons are taught even
minimally about the bargaining process and how it operates, such
information greatly enhances their likelihood of interacting effectively.
Well-prepared minorities and women should thus be able to seek advantageous
terms for themselves in ADR, even when dealing with white-male
counterparts. Conversely, there is no guarantee that members of ethnic groups or
women would achieve more advantageous outcomes in judicial
proceedings. Even the formal rules of judicial proceedings may be influenced by
subconscious stereotypes that still influence the ways that judges, jurors,
and arbitrators assess litigant situations. Therefore, this article posits that
adjudication is not clearly preferable to ADR procedures for minority
group members and women.
892
893
* Freda Alverson Professor of Law, George Washington University. J.D., 1971,
University of Michigan; Master of Industrial & Labor Relations, 1968, Cornell University
School of Industrial & Labor Relations; B.S., 1967, Cornell University. I would like to
dedicate this article to Professor Richard Delgado, a former colleague, whose
extraordinary scholarship has been of great benefit to so many academics, law students, and
practicing attorneys.
2. Impact of Gender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 900
IV. IMPLICATIONS FOR ADR PROCEEDINGS . . . . . . . . . . . 905
A. POSSIBLE IMPACT ON BARGAINING INTERACTIONS . . . . . 905
B. POSSIBLE IMPACT ON MEDIATOR ASSISTED
INTERACTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 907
C. POSSIBLE IMPACT ON JUDICIAL OR ARBITRAL
PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 911
V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 911
I. INTRODUCTION
Icreation of alternative dispute resolution (ADR) procedures to
reN the late 1970s and early 1980s, individuals began to encourage the
solve legal controversies.1 I found this development quite interesting
since I had already obtained a Master’s Degree in Collective Bargaining
and Labor Law. I had also been teaching a course on collective
bargaining and labor arbitration and became a coauthor of the third edition of
the Collective Bargaining and Labor Arbitration book.2 In my studies, my
teaching, and my work on this book, we explored the use of negotiation,
mediation, and arbitration to resolve employment disputes. We read A
Behavioral Theory of Labor Negotiations,3 which described how labor
and management representatives should employ integrative bargaining
techniques to effectively and efficiently resolve controversies. This
seemingly innovative approach to negotiating was developed in the early part
of the last century by a business consultant named Mary Parker Follett.4
To enable them to generate mutually efficient bargaining agreements,
labor and management representatives must go behind their stated
positions and explore each side’s underlying interests. Which terms do union
leaders desire that are not significant to employers (e.g., a union security
clause), and which items do management officials value that are not that
important to bargaining unit members (e.g., a no-strike provision)? By
ensuring that these terms end up on the appropriate side of the
bargaining table, labor and management negotiators can generate the largest
joint surplus and ensure the attainment of optimal accords.5 With respect
to the terms valued by both sides (e.g., wages and fringe benefits)—the
so-called “distributive” items—bargainers are likely to employ more
competitive tactics to enable them to claim a greater share of the surplus
for their own side.6
In the collective bargai (...truncated)