Employment Arbitration and Litigation: An Empirical Comparison

Abstract

Policy debate rages over mandatory employment arbitration. Using a unique database of American Arbitration Association employment dispute awards, this article compares court-tried employment cases and arbitrated employment claims. It compares adjudicated and arbitrated outcomes in the class of disputes most often the subject of arbitration, non-civil rights employment claims. For higher paid employees, we find little evidence that arbitrated outcomes materially differ from trial outcomes. Employee win rates in both forums exceed 55% and median awards in both forums exceed $65,000. We find no statistically significant differences between arbitration and litigation in employee win rates or in median or mean award levels. These results are consistent with the belief that lower pay employees lack systematic, realistic access to court. We also report evidence that arbitrated disputes conclude more quickly than litigated disputes.