08-30-2024
I have served as both a mediator and as an arbitrator in my career. These techniques are both very useful because disputes get resolved in a much speedier and more economical fashion than going into a court setting. Mediation and arbitration are used extensively in the United States and around the world. I have been involved in resolving labor management disputes from Ketchikan, Alaska, to Miami Beach, Florida, and in many other parts of the U.S.
Many of the cases I arbitrate involve discipline or discharge of employees for a variety of reasons. I also arbitrate contract interpretation cases. The cases I mediate typically involve helping the parties to finalize their negotiations over a successor collective bargaining agreement.
The two biggest recent changes I have seen in the usage of mediation and arbitration are the conducting of remote hearings and the growing influence of artificial intelligence in alternative dispute resolution.
Before Covid impacted all of us in 2020, all of my cases were conducted in-person. Covid changed that. Almost all hearings were held remotely for a couple of years. Things have rebounded back to the point where today about 30 percent of my cases are held remotely; 70 percent are in-person.
Just like in many other areas of society, the impacts of artificial intelligence have been felt in both mediation and arbitration. Whether it is assisting with the construction of contract language or the usage of AI to actually write awards, we are just beginning to see how AI will impact the field of alternative dispute resolution. I am a member of the prestigious National Academy of Arbitrators where an ad hoc committee is currently studying the area of artificial intelligence and how it is likely to change mediation and arbitration in the future.
Mediation and arbitration, both referred to as alternative dispute resolution techniques, have some similarities, but they are also quite different and both require a very different set of skills to practice effectively.
Both techniques involve a neutral person who assists two or more parties to resolve a dispute. In arbitration, the neutral arbitrator does have the final and binding power to resolve the dispute. When you enter arbitration, you know that you will get the dispute resolved. Both parties agree in advance to be bound by the decision of the arbitrator.
In mediation, the neutral person helps to facilitate a solution by basically asking key questions of the parties. The whole idea is to try to make the parties doubt the viability of their stated positions in order to reach a compromise. Mediators have no power to impose a solution on the parties. Mediators control the process but have no control over the outcome. Whether or not a deal is reached is entirely up to the parties.
James Dworkin is Chancellor Emeritus and a professor of management at Purdue’s Daniels School. His main teaching interests include collective bargaining, negotiations, and dispute resolution. In addition to arbitration and mediation, Dworkin’s areas of research are employment law, labor, leadership, sports, strikes and unions.
