Do Alternative Dispute Resolution Procedures Disadvantage Women and Minorities?

SMU Law Review, Dec 2017

When different legal controversies arise, parties frequently employ alternative 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.

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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 - 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)


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Charles Craver. Do Alternative Dispute Resolution Procedures Disadvantage Women and Minorities?, SMU Law Review, 2017, pp. 891, Volume 70, Issue 4,