SMU Law Review


In the 1985 foundational article Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution, Richard Delgado and his co-authors identified major concerns with the growing use of alternative dispute resolution (ADR) to resolve disputes involving people of color. The seminal findings from that article highlighted the power differentials exacerbated by informal dispute resolution, and the article contributed immediately to a surge of robust critiques of the increasing use of alternative dispute resolution for those most vulnerable in our society.

More than thirty years after the Delgado article, a community of respected and prominent ADR and discrimination scholars, assembled in panels at a symposium sponsored by the SMU Law Review in February 2017, explored the continued impact of ADR on disempowered disputants by analyzing discrete areas within the ADR process. Joined by keynote remarks from Professor Delgado as he reflected on his 1985 article, these scholars have provided an updated and valuable contribution as a new mil-lennium critique of ADR based upon prejudice.

As part of the scholarly reflections involved in this modern critique of ADR, this Article explores the concern of racial prejudice in using ADR in the workplace. This Black Lives Matter era has led to several situations where workplace disputes have arisen with respect to discussions about race. Employers have started to recognize that they must better prepare to handle workplace disputes related to race as a result of more protest and discussion due to the Black Lives Matter movement.

This Article examines a high-profile agreement between an employer and a union to provide a dispute resolution process to help its diverse employees resolve workplace disputes. The Article asserts that black employees can find racial justice in a workplace that uses a modified merger of the mediation and arbitration program developed by those parties. That process ameliorates many of the concerns about informality and prejudice that Delgado and his co-authors first expressed in 1985. As opposed to the dismal results in the courts, this ADR process provides a much more viable opportunity for black employees to resolve discrimination matters in a dignified way that respects employee voice and offers procedural justice in the workplace. As a result, all three of the key stakeholders, including employers, unions, and black workers, can embrace this merged mediation and arbitration program as a positive dispute resolution process.