Like all types of alternative dispute resolution (ADR), arbitration has continually increased in popularity in recent years. Arbitration is highly favored in the employment law realm, with employers’ use of mandatory arbitration clauses in employee contracts skyrocketing from only 2% in 1992 to more than 55% in 2017. In 2018, the Supreme Court decided Epic Systems Corp. v. Lewis, which expanded the power of employers over their employees by allowing them to include mandatory arbitration clauses that require employees to waive their rights to bring not only individual claims, but also collective claims with fellow employees. In 2019, mandatory arbitration clauses with class- and collective-action waivers were predicted to apply to over 80% of the nonunion, private workforce by 2024. On March 3, 2022, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, which amended the Federal Arbitration Act (FAA) to prohibit forced arbitration in sexual harassment claims. Mandatory arbitration remains, however, for other claims by employees that do not allege sexual harassment, which is arguably problematic and detrimental to employees.
Meanwhile, the 2020 COVID pandemic unexpectedly expedited the adoption of artificial intelligence (AI) with no sign of slowing down. Perhaps the most notable recent development in AI technology available to the public was the unveiling of ChatGPT in late 2022. What AI’s role can, will, and should be in the legal system is a heavily discussed topic. AI—and technological advances in general—can increase affordability and public access to the legal system. However, AI also creates several unique concerns, some of which impact its use in the legal context. The ADR community has questioned whether AI can, or should, be allowed to independently render arbitral decisions without human oversight—a question on which countries are currently divided.
This Note explores the potential risks involved in allowing AI to render arbitral decisions in forced employment arbitration. Following this introduction, Part II explains the functionality of AI and concerns with its use, both generally and specifically in the legal field. After an explanation of the technique of mandated disclosure and its role in arbitration regulation, Part III applies the various risks of AI to forced employment arbitration. Finally, Part IV offers general recommendations for the use and regulation of AI within forced employment arbitration moving forward.