By: Mitchell H. Rubinstein
Case law addressing advisory arbitration is relatively sparse
compared to that involving the more common, final and binding
arbitration. Although there is a significant collection of
scholarly books and articles regarding final and binding
arbitration, there is virtually no scholarly material pertaining to
advisory arbitration. More fundamentally, the little that is
written about advisory arbitration is often wrong or
misleading.
This article summarizes the law surrounding advisory
arbitration, with the goal of assisting attorneys and litigants in
determining whether advisory arbitration is a feasible form of
dispute resolution for their school district, agency, university,
or corporation. This article argues two points. First,
given its lack of finality, advisory arbitration in public or
private-sector labor-management relations serves little
purpose. Secondly, however, there may be a place for it in
the non-union private or public sector. Specifically, some
employers may find it advantageous to offer advisory arbitration
because of the lack of finality. Employees and employers will
be given an opportunity to be heard, which may decrease the amount
of unnecessary court litigation.
Indeed, the role of state law in labor relations is becoming
increasingly important. State courts have developed various
doctrines governing the field of private-sector employment
law. It is submitted that one such area of state law that
should be further developed is advisory arbitration.