Due process in employment arbitration: The Due Process Protocol
January 1, 2004
A brief history of the Due Process Protocol is given. It is observed that, for even those organizations and arbitrators who purport to comply with the Protocol, there is no mechanism for dealing with non-compliance, and no recourse. Unconsionable arbitration provisions persist. Many courts have upheld arbitration arrangements that did not comport with the requirements of the Protocol. Yet, the Protocol has “put the issue of fundamental fairness on the table” for the designers and administrators of in-house ADR programs, and has more often found application for non-statutory claims than for statutory. The problems of allocating fees and costs, disclosure, arbitrator activism, transparency, and advocates serving on neutral panels are discussed.