Recent events and national news stories dealing with employment-discrimination arbitration and university investigations of employment matters raise important law and accountability issues. Arbitration clauses within employment contracts can conceal the evidence and decision from peer and public evaluation, silencing those whom the misconduct most harms and thwarting other appropriate actions. In higher education, some colleges and universities have had outsiders conduct investigations but without documenting in writing the results, likewise leading to lack of public accountability. Consider each of these issues in turn, first with arbitration.
Every so often, the subject of arbitration receives a few paragraphs or columns on the front page of national newspapers. The stories generate interest for a day or two over whether arbitration clauses diminish or encumber access to justice, and eliminate the judicial process’s transparency.
My concern is that arbitration can in the wrong cases or types of cases adversely impact consumers, companies, employers, and employees not only on economic rights but on fundamental constitutional rights such as trial by jury and freedom of speech.
Arbitration is appropriate for essentially private matters. While many of the public, for instance, would find reports on the details of the dissolution of the marriage between Brad Pitt and Jennifer Aniston interesting to read, confidential arbitration or other private judging process may yet preserve important privacy rights, particularly where children and other sensitive relationships and interests are involved.
Other disputes may not warrant equivalent confidentially, though. When, for instance, a media outlet on which the public relies for accurate information finds members of its news staff embroiled in sexual-harassment claims, the public may have a greater interest in a public airing of the dispute, particularly if the claims relate in some way to the veracity of the outlet’s public reports. An employment agreement that prevents the putative victim of the misconduct from making any such public airing may both prevent the public from making sound judgments on the reliability of the outlet’s work and also prevent other putative victims from learning about the matter and coming forward with corroborating experiences.
Then consider another national news story, this one involving how higher education investigates significant employment issues. Another recent story involving a large university with a national reputation involved allegations of sexual misconduct at the university that the university had an outsider investigate, while producing only an oral report. Recognize the potential for abuse or misuse of such a process. Without any written findings to share, no peer member of the institution or member of the public could review, evaluate, and comment on the findings—or the university’s response to the findings.
Presumably, the university preferred the oral report for public-relations reasons and perhaps also to protect student or employee privacy. Yet consider the risk and danger of failing to warn students or others of potential dangers and the very significant damage to the university’s own reputation in the event that further harm does result and the public concludes that the oral report amounted to a cover-up.
Sensitive and effective dispute resolution requires more than a one-size-fits-all approach. Secrecy through arbitration clauses and oral reports may in certain cases, probably rare cases, be appropriate. Yet dispute resolution often benefits from an open and transparent process. Everyone closely involved seems to want to cover-up the event, when public scrutiny of the process, and even public participation in the process, may instead be the only appropriate course. Open dispute-resolution processes diminish speculation. They build rather than destroy public trust. Studies also indicate that when the participants understand a process to be fair, participatory, thorough, and transparent, even the losers are more willing to accept and comply with the result.
Blog author Professor Graham Ward is the director of WMU-Cooley Law School’s Center for the Study and Resolution of Conflict. The Center offers seminars and specific undergraduate and graduate-level courses that teach participants how to improve the way they deal with conflicts.