Private vs. Public Dispute Resolution in Labor and Employment: A Comparative Analysis of the United States and South Africa
This thesis compares labor and employment dispute resolution forums in South Africa and the United States, examining how their institutional designs shape outcomes for employees and employers. The thesis examines three core questions: (1) how do labor and employment dispute resolution forums differ across the two countries, and how do those differences affect outcomes for workers; (2) how do the ownership of the dispute resolution forums, between public institutions, union–employer-owned forums, and private providers, shape accessibility, speed, and fairness for employees and employers; and (3) how do the roles and training of alternative dispute resolution neutrals who facilitate the dispute resolution process influence process and outcomes? Using a mixed-methods design, the study uses statutes, agency reports, administrative data, academic literature, and semi-structured practitioner interviews. The thesis finds that South Africa’s centralized, publicly regulated labor relations dispute resolution system, anchored by compulsory conciliation and arbitration through the Commission for Conciliation, Mediation, and Arbitration and accredited bargaining councils, produces more uniform and informal procedures and substantially faster case resolution than the United States’ layered, fragmented system. In the United States, meaningful protections and efficient adjudication are concentrated in union grievance arbitration, which is inaccessible to most private-sector workers, while government and the courts are comparatively slow, procedurally burdensome, and often perceived as unfair. South Africa’s public institutions actively regulate and accredit private dispute resolution bodies, enabling private forums to operate efficiently while maintaining procedural standards across both public and private agencies. The dispute resolution forums in the United States frequently seed power to the largely unregulated, fragmented private dispute resolution market that can favor either employers or employees depending on the forum design. Because South Africa has an overarching government agency that regulates workplace dispute resolution, it can also train and oversee the quality of arbitrators and conciliators who ensure the entire system works. Meanwhile, the fragmented system the United States has created has also created a wide range of training and experience among neutrals. Two case studies about the United States New York City Hotel and Gaming Trades Council and South Africa’s Bargaining Council for the Civil Engineering Industry illustrate how sectoral, private institutions differ due to these dynamics. The paper concludes by evaluating current pressures on labor rights in both countries and proposes reform pathways for the United States informed by South Africa’s model.