The firm of Ogletree Deakins and St. Louis University recently held an all-day Employee Dispute Resolution Symposium at the University’s very beautiful Busch Student Center. The proceedings were well-attended and it was a privilege for me to be invited to present the opening remarks.
The comments of the various speakers, many from in-house corporate programs and some from outside attorneys, suggested that the “center” has shifted over the past few years, and that comprehensive conflict management programs that seriously address employee concerns rather than gearing up for employment arbitration are very much the norm these days.
In 2001, when CPR Institute published my book How Companies Manage Employment Disputes, it was news that some forward-looking companies concentrated their efforts on problem identification, peer review, open door policies, mediation, and other problem-solving efforts rather than on alternatives to litigation. Companies like Johnson & Johnson, Halliburton and Shell were considered pioneers because they encouraged employee participation in non-adjudicatory processes aimed at addressing and correcting employee concerns.
This was a time when the paradigm was to shift employment claims away from court and into arbitration. Those of us attorneys who were active in the area were looking at the progeny of Gilmer, and parsing the various Circuit City and Hooters cases to find out how to frame an arbitration program that would survive judicial challenge. This was also around the time that the AAA’s Due Process Protocol was promulgated. The emphasis was on how to arbitrate employment claims, and survive judicial scrutiny in doing so, not how to manage workplace problems.
Meanwhile, under the leadership of Chairman Jay Waks, the CPR Employment Committee kept chugging away at the far end of the spectrum. A few years later, CPR published a companion volume, Resource Book for Managing Employment Disputes, on the ground that certain techniques of employment dispute management were not well understood and needed to be explained at greater length. In that book, various practitioners within enterprises discussed aspects of their programs in detail: Jeanne Mathews of GE explained tiered prgram design; Mary Rowe of MIT and Wilbur Hicks of Shell described how institutional Ombuds offices worked; Donna Malin of Johnson & Johnson wrote about Open Door programs; Nancy Vanderlip of IT&T explained how Peer Review Boards worked; and so on.
Judging from the St Louis Symposium, all this is now well established and in the mainstream of practice.
In the first panel, Tracy Poole of Johnson & Johnson, Brad Greene of Gexpro and Trip Gregory of Palmetto Health offered three contrasting stepped programs, some culminating in arbitration and some not, but all aimed at resolving employee disputes early.
Lance Witcher of Ogletree Deakins took note of some pending federal legislation and a recent Missouri intermediate appellate opinion to suggest that employment arbitration might be “riding a wave” of hostility. His advice to systems designers was a model of conservative precaution, emphasizing mutuality, neutrality, no unreasonable limitations on discovery or remedies, no additional filing fees, no abbreviated limitations periods — a handy and concise collection of eminently useful tips.
Richard Ross, formerly head of the employment program at Anheuser Busch, discussed a variety of aspects of this company’s splendid program, but his conclusions were essential. As a practical matter, some court somewhere will disallow some aspect of any program, he said. Don’t devote your resources to fighting that. Use your resources instead to earn the trust of your employees and to provide incentives for them to use the program. So many problems will be fixed when people use the program that you will want to capture those savings, not spend on the tiny proportion of challenges to it.
More reports were given by Chevon Fuller of Boeing, Melanie Lewis of Coca-Cola Enterprises and Melissa Ingalsbie of Darden Restaurants. A special note was made by Jeremy Williams of Darden, who recounted that he realized that the company’s dispute resolution program did not accurately reflect the ethnicity and race of the population of 16,000 employees the program was meant to serve. He stated unequivocally that the company was proactively seeking to ensure more diversity in its ADR efforts. This is a topic on which I have worked for years, and unfortunately it remains as urgent now as it was several years ago.
The Symposium was co-sponsored by AAIM Management Association and the Association of Corporate Counsel-St. Louis. All of the organizers should be very pleased with their work.
The Symposium on Employee Dispute Resolution sounds most interesting.
I looked at the syllabus at http://tinyurl.com/ogletreedeakins.
I would be grateful if someone would inform me whether a recording, transcript, or printed materials from the symposium are available.
I don’t know, but you could ask Rodney Harrington at Ogletree Deakins.
FPP
Love the idea that arbitration might be “‘riding a wave’ of hostility.”
From the Franken Amendment to additional pending legislation to eradicate all binding pre-dispute arbitration clauses, I would say the wave is well formed and moving fast.
No place is this more apparent that in the employment sector.
Mr. Ross’s comments seem especially valuable and on target. This is what I have been encouraging clients and legislators alike to focus on — programs that work on an interest and relational basis so as to preempt the need for arbitration and even external mediation.
These would be programs like peer review and especially Ombuds programs which have been repeatedly demonstrated to return greater humanistic and economic value than any other approach to organizational conflict and employment disputes.
I wonder though Peter if it is fair to say these are well integrated in the mainstream of organizational life. There are more than 20,000 Ethics/Compliance officers, and millions more HR, corporate and external counsel focusing on Power and Legal based processes impacting organizational issues, while there are far fewer than 1000 ombuds in corporate America. Certainly there are a good many peer review programs as well.
But the net net net of this is, the broad spectrum of conflict management and dispute resolution tools still tip toward or strongly favor the Power and Legal based mechanisms, and not those Interests and Relations. More should be done to both examine and promote these preferable alternatives, but also to actually understand why organizational leadership opts AWAY from these cost effective, beneficial, and in fact superior mechanisms.