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Harvard Negotiation Law Review

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In Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, Inc. the First Circuit addressed whether a pre-dispute mandatory arbitration contract covered employment claims under Title VII and the Age Discrimination in Employment Act (ADEA) and was thus enforceable. The court held that while these types of arbitration contracts are theoretically enforceable, this particular contract was not. The First Circuit determined that the 1991 Civil Rights Act and the Older Worker's Benefit Protection Act did not preclude the enforcement of mandatory arbitration contracts, and that there was an insufficient showing of arbitral bias to prevent the contract's enforcement. The court, however, ultimately declined to send the plaintiff to binding arbitration because the contractual language failed to specify which rights the employee was waiving. This mandate of a basic level of information necessary to make an arbitration contract enforceable is a step toward interest-based negotiation, but does not go as far as it should to guarantee that employers and employees mutually and voluntarily agree on the best method for resolving disputes through a process of principled negotiation.


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