The Devil Is in the Details: Attorney Heterogeneity and Employment Arbitration Outcomes
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Conventional wisdom holds that hiring a lawyer will improve outcomes for non-union employees who take individual rights complaints to arbitration. However, the limited amount of empirical scholarship into this topic has rarely accounted for the concurrent influence of employer representatives, or for the presence and effects of employee and employer attorney heterogeneity. I analyze all arbitration awards rendered within the securities industry from the implementation of its ADR program through the late-2000s, and first find that hiring an attorney benefits employees only in the rare cases that employers do not also include an agent. I then account for attorney selection into cases by limiting the analysis to only claims that involved attorneys. I use biographical records for each lawyer to explore attorney heterogeneity in education, expertise, gender, experience, and other characteristics. I examine longitudinal changes in attorney characteristics over time, and empirically test how these differences affect outcomes. I find that many employee and employer attorney characteristics vary and have grown more pronounced over time, and several of these variations shape outcomes. I conclude that although hiring an attorney may not redress power imbalances within employment arbitration, more nuanced analyses reveal that they are important to the system and certain types of lawyers can provide important benefits.
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employment arbitration; outcomes; attorney heterogeneity; alternative dispute resolution
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conference papers and proceedings