Scheinman Institute and AAA Explore the ‘Evolution of Workplace ADR'

On Nov. 12, 2024, Cornell ILR’s Scheinman Institute and the American Arbitration Association (AAA) examined the ‘Evolution of Workplace ADR.’ The event at ILR’s New York City office delved into the impact of artificial intelligence on alternative dispute resolution (ADR), how new, diverse neutrals can enter the profession, and how policy proposals can expand the use of workplace ADR.

‘No consensus’ on AI, but ‘people want guidance.’

“AAA is really operating from the perspective of being AI optimists,” began Diana Didia, senior vice president and chief information and innovation officer of AAA-ICDR, kicking off the event’s first presentation. “We have every employee at the AAA engaged in getting trained on AI, using Chat GPT, generating ideas of how we can leverage AI to improve customer service, to improve efficiency.”

AAA Commercial and Employment Arbitrator David Evans found himself “in the Diana Didia School of being an incredible optimist about the technology,” agreeing with Didia’s detailing of AI’s role in automating intake and scheduling tasks. “I use it every day, in all kinds of applications,” said Evans. “In my workflow as a neutral, obviously, there are disclosure and transparency issues that you have to navigate, but I just can't imagine essentially pursuing a lot of these workflows now without using the tools. It's just incredibly effective.”

“To think about how much the tech has evolved and how groups like the AAA and other companies have improved their systems is a fair warning of just what people were skeptical about and what people were thinking,” said ILR MS Candidate and mediator and arbitrator Patrick Mehler `23, whose research had explored advocates' and neutrals’ sentiments on virtual hearings and AI.

 The room full of arbitrators was cautiously bullish on AI’s use, but Mehler’s research, “Evidence from the Field Regarding How New Technology Is Being Used in Workplace ADR,” found that “everybody had their own ideas [about AI]. There was absolutely no consensus whatsoever,” said Mehler, “But they all agreed that they wanted guidance.”

Founder of Scheinman Arbitration and Mediation Services and benefactor of ILR’s Scheinman Institute, Martin F. Scheinman `75, agreed that AI’d undoubtedly be a great helper, “But I don't think we should try to make it be Everything,” he said. “If we do that, then inevitably you're going to get an attitude about AI that misses the real essential element of what conflict resolution is about.”

“Arbitration, usually, is pretty lonely,” said Scheinman. “You're on your own, and every arbitrator has anxiety that somehow they missed something. So, I see AI as very useful at a point sometime later in the process, if you are alone, to be able to get some feedback that you probably don't get ordinarily.” 

For AAA Labor and Employment Arbitrator Jacqueline Drucker, “The potential for checking our analysis, as arbitrators, I think is very real. The idea of having another source of analysis is interesting to me.”

“I think if we can convince them that AI is a great assistant, there'll be much earlier adoption. So that's why,” Scheinman responded to Evans, “there's so little adoption here because it feels like drinking from a fire hose–we’ve got to figure out how to dole AI out in a way in which everybody is going to feel comfortable.”

 Now Hiring: New neutrals. Must be experienced–A Catch-22 that goes ‘on and on and on and on.’

Picking up where the 2024 Triad Conference left off, Katrina Nobles, director of conflict programs at the Scheinman Institute, set the scene for the discussion, presenting a survey that assessed how mediators enter the profession. She highlighted the shift in career paths for many mediators, often moving into mediation mid-career or post-retirement. “We found that a majority of mediators had careers in four categories: government, military, academia and legal prior to becoming neutrals,” said Nobles, with a notable number coming from law firm experience.

But there seems to be a Catch-22 within the arbitration field: “You have to have more experience in order to get cases, but in order to get cases, you need to get experience,” said Ingeuneal Gray, vice president of DEI at AAA. “In order to get experience, you need cases. And it just goes on and on and on and on.”

“I talk to parties,” said President of the National Academy of Arbitrators and AAA Arbitrator Alan Symonette. “I hear, ‘Alan, there are not enough arbitrators. We can't find somebody to do cases.’ In the very next sentence, they would say, ‘But there's nobody out there that we know.’”

A question started from the audience–“I'm interested in getting into other arbitration areas, and I'm wondering, are there any other programs for people to gain experience in mediation and arbitration? Because I think that often the parties hiring want people with experience. So, how do you get the experience in those areas when, you know, you have to have experience in order to get hired on those cases?”

Gray had the answers, outlining AAA's inclusivity-driven committees and initiatives like the DEI clause builder option, which allows parties to include diversity as part of the arbitration selection criteria; the equal representation in arbitration pledge, which affirms commitment to increase the number of women arbitrators in the International Dispute Resolution field; and The Ray Corollary Initiative, which aims to increase diversity, equity, inclusion in the selection of arbitrators, mediators and ADR neutrals. There’s also the AAA ICDR Foundation Scholarship Fund, which provides grants to diverse law students and professionals to attend ADR-focused programs, as well as new arbitrator roundtables and the Pathways to ADR series, which aim to support new arbitrators and professionals interested in ADR. Whew. 

“I would just add,” said Symonette, “that in many respects, gaining experience, especially in labor and collective bargaining, it's kind of the old school method–there's mentorships going on that you have to have experience with season arbitrators. So, what I would recommend is basically to get out, and if you're seeking experience, find those with experience who are willing to work with you and to have you shadow."

Making the case for employment arbitration: ‘We can't just wait around!’

Harry Katz’s presentation during the third and final act of the event provided systematic data on the outcomes of discrimination cases in litigation versus arbitration. “Our key finding is this: Employees do much better in employment arbitration than they do in litigation,” said Katz, whose research found that employees win 19% of arbitration cases versus 1% in litigation. 

“I could go on and talk about the data; I don't want to focus on that,” said Katz, ILR’s Jack Sheinkman professor and director at the Scheinman Institute. “I want to focus on what we all should be doing!”

“We should be actively promoting employment arbitration! We can't just wait around for the public to read our research or hear about our findings. We should be out there making the case that employment arbitration can be a fair, effective and efficient method to solve workplace disputes. We should do it because it's a great remedy. We should do it because the country needs it. The country needs it ever more.”
 

 “We are a deeply fragmented, decentralized, bifurcated system in the United States,” Ariel Avgar followed Katz with his own big-picture talk, tackling the United States’ national dispute resolution system via a comparative study with five other countries. “There is no integration across our system of dispute resolution.” 

Avgar, the David Cohen professor and senior associate dean of outreach and sponsored programs at ILR, discussed the sharp distinction between union and non-union sectors and the wide variation in dispute resolution in non-union settings, emphasizing the need for a more coordinated and integrated system.   Avgar also investigated the role of private actors–many in the room at the day’s event–in resolving conflict and the challenges of integrating these actors into a more coordinated system. 

“If all of us sitting in this room today were going to build a national dispute resolution system–the way in which workers have access to justice and to dispute and to conflict resolution–would we build it the way it looks today?” asked Avgar, in earnest. “Would what we have today be what we actually design and build?”

As the saying goes, if you want to make an omelet, you need to have an honest and frank discussion with the eggs–The event’s success owed itself to the passionate speakers, panelists and audience who, together, never shied away from the tough topics ADR faces. The debate over ADR’s future lasted five hours, and, more so in the interest of time rather than lack of want, the event had to wrap up its exploration.

“Our system needs you,” Katz said to the room full of arbitrators, closing out the day. “I'm making the case to the already concerned, but we're all being too passive. We’ve got to find other ways to convince employees, affinity groups and employers about the value of what you do. You do great things!”

The event ended, and people dispersed but didn’t leave; rather, just reassembled in ILR’s cafe down the hall, and the conversation continued.