1. Arbitration
Class 1

2. Administrative
Give quiz
Dolphy Day policies

3. Review Factors that shape whether mediation occurs
Mediation and Impartiality
Mediation Outcomes
The truck and tire negotiation

4. Today What is Arbitration
Employment Arbitration and other contracts of adhesion
Due Process
The Due Process Protocol
Key Ideas from Today’s Class

5. I. What is arbitration?
Assistance to two (or more) disputing parties by a third party who has the authority to make a binding decision
Voluntary versus compulsory arbitration

6. II. Employment Arbitration and other Contracts of Adhesion
What is a contract of adhesion? Examples?
Example – Moving companies
Do you have a choice?
What is your alternative?
Many employers now routinely require all employees to sign a contract agreeing to arbitrate any and all employment disputes
Involves giving up any right to sue, even over disputes involving statutory rights
Do you have a choice in signing such an agreement?

7. II. Statutory Rights What are statutory rights?
Can you provide examples of statutory rights you might have in your relationship with
Your neighbors?
Your family?
Your students (if you are a teacher) or your teacher (if you are a student)?
Other examples?
Are you or can you be required to arbitrate any disputes of this kind?

8. II. Statutory Rights
Examples that might become subject to dispute at work?
Discrimination
Entitlement to reasonable accommodation
Entitlement to minimum wage or overtime pay
Pension protection
Termination bonus

9. II. Statutory Rights Example – The case of Jamie Leigh Jones
Background and the Issue
The employer claims she waived her right to sue in signing her 2005 employment agreement requiring that she arbitrate any workplace disputes
Jones asked a federal judge to disregard the arbitration agreement
Since then law has changed, forbidding military to contract with companies that require employees to arbitrate sexual harassment claims

10. III. Due Process What is “due process?”
Why is it a special concern with pre-dispute arbitration agreements at work?
Is your employer obliged to honor the rules of “due process” in her/his dealings with you?
What “due process” rights would you have if you sued your employer?

11. IV. Due Process Protocol
What did protocol require?
Right to representation by someone of the employee’s choosing
Right to discovery under arbitrator’s supervision
Training for arbitrators in requirements of statutes involved
Employer to pay most costs but division of costs not disclosed to arbitrator
Arbitrator can impose any remedy available in court
Awards final and binding

12. V: Key Ideas from Today’s Class
Arbitration - Assistance to two (or more) disputing parties by a third party who has the authority to make a binding decision
Employment Arbitration
Contracts of Adhesion
Due Process Protocol

13. Next Time
Variations on the theme of arbitration

14. Arbitration
Class 2

15. Administrative Return quiz Collect critique 4
Second negotiation exercise begins next class
Dolphy Day – check announcements

16. Review What is arbitration?
Contracts of Adhesion and Pre-dispute Arbitration Agreements
Statutory Rights and Due Process
The “Due Process Protocol” for employment arbitration

17. Today Recent Cases How do arbitrator’s decide cases?
What incentives do these alternative decision models create?
The Goldberg Model
Key Ideas from Today’s Class

18. I. Recent Court Cases What should be the law in this area?
When should employers be able to compel arbitration?
When should employees have the right to go to court?
How about customers of moving companies? Building contractors?

19. I. Recent Court Cases Skirchak v. Dynamic Research Corp.
Seawright v. American General Financial Services
Brady v. Williams Capital Group

20. II. How Do Arbitrators Decide Cases?
Suppose arbitrators “always” compromise between the positions of the disputants?
Suppose arbitrators decide cases by a set of principles?
Suppose arbitrators decide cases randomly?

21. III. What incentives do these alternative decision models create?
Compromise?
Principles?
Random decisions?

22. Example One friend “owes” another $1000
That friend has refused to pay it back, saying it was a gift
The lender claims it was a loan but that she has lost the IOU indicating that
What will the arbitrator do?

23. IV. The Goldberg Model
How is the Goldberg approach different from conventional arbitration?
What is the reason for this modification?

24. Example Negotiating a marital separation
The background
The principles the arbitrator uses
Will the parties be able to reach an agreement?
What will the agreement look like?
Why?
Divide class and have them attempt to reach agreement

25. Information for the Case
The background
Two children 10 and 6. Both parents want custody of the children
Husband and wife both work outside the home
Husband earns 20% less than the wife (He earns $40,000 and she earns $50,000)
They have a house with worth $135,000 with $100,000 still to pay on the mortgage
The principles the arbitrator uses
Mothers retain primary physical custody of children with visitation rights for the father
The non-custodial parent must pay child support of $500 per month per child
Non-custodial parent must pay alimony only if after child support he/she earn at least 10% more than the custodial parent. Must pay half of all amounts over that 10% more
Custodial parent must pay alimony if before child support he/she earns at least 100% more than the non-custodial parent. Must pay half of all amounts over that 100% more
House remains with custodial parent and each parent must pay half of mortgage and taxes until youngest child is 18 at which point the house will be sold and proceeds divided equally

26. Example
Parent insists child (16 years old) be home by midnight on weekends
Child argues for 2:00 AM curfew
Parent insists child mow the lawn and shovel the driveway
Child argues for payment for those chores
Arbitrator rules
Will parties negotiate before implementation of the award? What outcome?

27. V:Key Ideas from Today’s Class
Courts have ruled inconsistently on employment arbitration provisions
The way parties think arbitrators decide cases influences the way they negotiate
Goldberg model

28. Next Time Begin 2nd negotiation exercise
Begin Topic of Arbitration Variations afterward