A fragmented and heavily privatized dispute resolution system: The United States

• Published date: 01 July 2023
• Author: Ariel C. Avgar,Alexander J. S. Colvin,Harry C. Katz,Katrina G. Nobles
• Date: 01 July 2023
• DOI: http://doi.org/10.1111/irj.12409

DOI: 10.1111/irj.12409

SPECIAL ISSUE ARTICLE

A fragmented and heavily privatized dispute

resolution system: The United States

Ariel C. Avgar David Cohen Professor and Senior Associate Dean of

Outreach and Sponsored Research |

Alexander J. S. Colvin Martin Scheinman Professor and Dean |

Harry C. Katz Jack Sheinkman Professor and Director of the Scheinman

Institute on Conflict Resolution |

Katrina G. Nobles Extension Associate and Director of Conflict

Management Programs

ILR School, Cornell University, Ithaca,

New York, USA

Correspondence

Harry C. Katz, Jack Sheinkman Professor

and Director of the Scheinman Institute

on Conflict Resolution, ILR School,

Cornell University, Ithaca, New York,

USA.

Email: hck2@cornell.edu

Funding information

International Programs, ILR School,

Cornell University

Abstract

The United States possessesahighlyfragmentedand

decentralized set of mechanisms addressing work‐related

conflicts and disputes. There are consequential differences

in how workplace conflicts are resolved across the

following settings—union and nonunion or collective

and individual, public and private sectors, traditional and

nonstandard employment models, and public and private

forums. An important trend is the growing influence in

the nonunion sector of ‘private justice’provided in

employment arbitration and conflict management systems

as a replacement for ‘public justice’, and in the union

sector, private neutrals also play a key role.

1|INTRODUCTION

This international research project is motivated by the desire to analyse how public

agencies involved in work‐related conflict resolution are responding to economic and

social changes. The United States is likely to serve as a revealing case in this project's

Ind. Relat. 2023;54:304–320.304

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wileyonlinelibrary.com/journal/irj

This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and

reproduction in any medium, provided the original work is properly cited.

© 2023 The Authors. Industrial Relations Journal published by Brian Towers (BRITOW) and John Wiley & Sons Ltd.

international comparisons, because it faces a myriad of unique economic and social

pressures, and possesses a highly fragmented and decentralized set of mechanisms

addressing work‐related conflicts and disputes. Economic and social pressures include a

low and stagnant level of private sector unionism, political and legal attacks on public

sector collective bargaining, a growth in platform app‐based work and a reduction in the

share of the workforce that experiences long‐term attachments to particular firms. Taken

together, these pressures and conditions have led to a unique dispute resolution landscape

that carries with it a host of implications for the manner in which conflict plays out in

union and nonunion organizations in the United States.

The framework we employ in this study identifies key divisions that characterize the

US dispute resolution system. Constructing a comprehensive portrait of this system

requires a careful delineation between a number of different employment contexts and

arrangements. In particular, we focus on four consequential differences across settings

and available forums to resolve conflict—union and nonunion or collective and

individual, public and private sectors, traditional and nonstandard employment models,

and public and private forums to resolve conflict. These differences mean that, in the

United States, the manner in which workplace conflict is resolved is highly contingent on

where it arises. In particular, these differences have implications for the forums, public or

private, which workers can use to resolve their conflict and adjudicate claims against their

employers. Our paper outlines the pieces of the complex puzzle that is the US dispute

resolution system—decentralized, bifurcated and uneven.

First, with regard to the difference between the union and nonunion setting in the

United States, variation in the mechanisms that traditionally have addressed work‐related

conflicts in the United States is enhanced by the bifurcated nature of conflict resolution in

the union and nonunion sectors. One of the most pronounced features of the US conflict

resolution system is the existence of two dramatically different models available to union

and nonunion workers. The union sector is characterized by robust and embedded

conflict resolution mechanisms that include a long‐standing and deeply rooted grievance‐

arbitration system, federal and state agencies that help mediate negotiation impasses in

the union sector, and federal and state level ‘boards’that facilitate labour‐management

relations. Meanwhile, in the nonunion sector, conflict management options are, for the

most part, a managerial decision guided by a host of strategic motivations, many of which

are not directly related to the fair resolution of worker grievances. As such, mandatory

employment arbitration has become prevalent as have various firm‐level conflict

management practices, including mediation and the ombuds office. In both the union

and nonunion sectors, federal and state courts and agencies, such as the Equal

Employment Opportunity Commission (EEOC), continue to be involved in discrimination

investigations and lawsuits and other employment rights disputes.

Second, within the union setting, access and availability of conflict resolution practices

varies greatly between private and public sector organizations. Resolution of interest disputes in

the private unionized sector is largely addressed through the Federal Mediation and

Conciliation Service (FMCS), discussed in detail below. In the public sector, conflict resolution

is contingent on different federal and state level legislation. Across states conflict resolution

structures and processes vary substantially as a function of dramatically different approaches to

collective bargaining.

Third, our study draws attention to the changing nature of work and identifies some of the

implications these changes have in terms of the access workers have to conflict resolution

FRAGMENTED AND HEAVILY PRIVATIZED DISPUTE RESOLUTION

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