Document Type

Working Paper

Publication Date

2006

Keywords

ADR, alternative dispute resolution, dispute resolution, conflict management, collaborative, collaborative law process, employment law, employment dispute, interest-based negotiation, negotiation, positional negotiation

Abstract

Work is central to American life and drives us in fundamental ways. And the workplace, as a result, dominates our lives. We are spending ever greater amounts of time in the workplace and less time in civic and social engagements. As a consequence, our relationships at work have become so significant that they are nearly as important to us as our family relationships. In fact, the employment relationship is similar to the family relationship in the emotional support from coworkers it can provide and in the financial support it provides. Because the employment relationship is so common and psychologically so important to us, employment disputes are especially difficult and sensitive for both employers and employees. Moreover, disruptions in employment wreak real financial havoc in people's lives and can significantly disrupt the operations of a business as well. Given these factors, trials, with their delays, uncertainties, and expenses look less attractive as a method dispute resolution than they otherwise might. From the perspective of the courts, the potential caseload posed by employment disputes also makes trials an unattractive choice for resolution. Accordingly, alternative forms of dispute resolution (ADR) play a dominant role in resolving and avoiding labor and employment conflicts.

This paper, building on the comparison of the employment relationship to the family relationship, focuses on one newer form of ADR, the collaborative law process, and explores its application in the employment context. Collaborative law, as the name implies, is not adversarial and has been used in family law where continuing relationships are an important outcome of the resolution process. Part two of this paper outlines the various forms of ADR, part three details the specific features of the collaborative law process, and part four suggests some possibilities and limitations of using that process in the employment setting. Although collaborative law will probably not transform labor and employment conflicts the way it has some family law matters, there is, nonetheless, significant value to be gained by adapting it.

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