Law Quadrangle (formerly Law Quad Notes)


Crowded court dockets and a need for practical solutions are returning arbitration to center stage

These remarks were delivered as the keynote address for the Federal Mediation and Conciliation Service's Third Biennial Midwest Arbitration Symposium at Minneapolis, April 12, 1996. Most reference citations have been deleted. For a copy of this article with full citations please contact the LQN editor.

A strong new ideological current is sweeping through much of the Western World. At one extreme it manifests itself as a deep distrust of big government. In more modest form, it is a sense of skepticism or disillusionment about the capacity of big government to deal effectively with the problems confronting our society. In continental Europe today there is much talk of the principle of "subsidiarity," the notion that social and economic ills should be treated at the lowest level feasible, usually the level closest to the people directly affected. In the United States there is much talk of "privatization," the transfer or subcontracting of many traditional governmental functions to private industry.

These ideas have their counterpart in our own field of labor and employment law. In some respects there is nothing new about all this. In the earlier part of this century labor unions, bruised as they were by many encounters with a strikestopping, injunction-wielding judiciary, looked upon law and government as more foe than friend. Unions responded warmly to the laissez-faire philosophy embodied in the Norris-LaGuardia Act of the early 1930s. Management as well as labor came to regard government involvement as intrusive; both espoused the private settlement of unionemployer disputes through collective bargaining and voluntary arbitration. Even when the federal government began to intervene more actively, through the Wagner and Taft-Hartley acts, Congress directed the newly reorganized Federal Mediation and Conciliation Service to "make its ... services available in the settlement of ... grievance disputes only as a last resort and in exceptional cases." Indeed, so ardent a champion of collective bargaining and grievance arbitration as Dean Harry Shulman decried the very concept of court litigation over labor agreements.