ALTERNATIVES TO THE U.S. COURT SYSTEM: Mandatory Employment Arbitration, Victim-Offender Mediation, and Immigration ‘Quasi-Courts’

Abstract

Confidence in the U.S. court system is waning. Although litigation remains the predominant method of settling disputes in the United States, alternatives exist. These processes, often referred to as types of “alternative dispute resolution” (ADR), serve as substitutes for the traditional legal system. Considering the importance of the court system in protecting the rights of individuals, the question arises: do alternatives to the traditional U.S. judicial system exist that are in fact more accessible and efficient at settling disputes? In this thesis, I assess three substitutes for traditional litigation: pre-dispute, mandatory arbitration used in employment contracts; victim-offender mediation (VOM) utilized in criminal cases; and immigration courts as ‘quasi-courts’ within the Department of Justice (DOJ). To evaluate these three alternatives, I use metrics derived from the original intent of the Federal Arbitration Act of 1925 (FAA), legislation which cemented arbitration into American society and led to the expansion of other forms of ADR. The three metrics I utilize are 1) accessibility to a fair and thorough procedure 2) cost to all involved parties and 3) speed of the process. In my evaluation, I weigh accessibility—particularly for “one-shotters” who are unfamiliar with the legal system—with greater importance. Given the constitutional promise of due process, a fair and thorough procedure cannot be sacrificed for cost or speed.

First, I find that pre-dispute, mandatory arbitration in employment contracts results in lower win rates and restitution amounts for employees when compared to traditional litigation. Although arbitration is generally a faster and cheaper process for employees, I argue that these benefits cannot come at the cost of an equitable process. Therefore, I recommend that legislation be enacted which prohibits pre-dispute, mandatory arbitration in employment contracts. Next, I find VOM to be a successful alternative to the traditional criminal justice system. Both victims and offenders generally consider VOM programs more satisfactory than litigation. Also, this form of ADR saves both money and time when compared to the criminal justice system. Given these findings, I recommend that the government supports VOM programs both with policy that protects mediators from being forced to testify in court and through increased funding. Last, I conclude that the immigration quasi-court system does not offer individuals seeking asylum access to a fair and thorough process. Since the current system is under the influence of the executive branch, the accessibility, cost, and speed of the process are impacted substantially by political ideology. To ensure due process, I recommend the immigration court system be transformed into an independent body which lies outside of the DOJ.

While these policy recommendations provide insight into the strengths and weaknesses of present alternatives to litigation, they cannot be extrapolated to other forms of ADR since they depend on the distinct contexts of these three case studies. Given the variety of ADR used in the United States today, we must continue to assess these processes to ensure they uphold the American ideal of an equitable justice system.