Alaska Employment Law

The parties in the Bethel, Alaska, voting rights case have resolved most of the remaining issues, with the assistance of a 9th Circuit mediator.  On one remaining major issue (unidentified by the parties), they have agreed to engage in “baseball arbitration.”

The parties describe the process as follows:

Rather than litigate this single outstanding issue, the Parties jointly request, pursuant to Local Rule 16.2(c)(2), that the Court assist the Parties in resolving this remaining issue through binding arbitration using a “baseball arbitration” process.

Under this process, the Parties will each submit a proposed provision and the Court will select from the two options. Along with their proposal, each party will submit a brief explaining why their proposal should be included in the Consent Decree. The two briefs and proposals will be submitted simultaneously along with the proposed final Consent Decree. Each Party’s proposal and brief shall be contained in a single document not to exceed five pages (exclusive of caption, signature page, certificate of service, and exhibits) and the Parties may cite to any previously filed documents. The Court would then select from the two proposals, with the Court’s selection becoming a final term in the Consent Decree. The remaining terms of the Consent Decree will not be subject to further revision by the Parties unless directed by the Court. The Parties agree to accept the remaining terms of the Consent Decree regardless of which Party’s proposal the Court selects for the outstanding provision.

The purpose of this kind of binding arbitration is that each party has a strong incentive to submit a reasonable proposal in the hope that it will be selected by the Court. 

Nick v. Bethel, No. 3:07-cv-0098-TMB (D.Alaska Joint Stipulation filed May 15, 2009) 

Update: Why is it called “baseball arbitration”?  According to Wikipedia, because that’s how salary disputes are resolved in Major League Baseball.  It’s also called “pendulum arbitration,” and has a variant called “night baseball arbitration.”

Pendulum Arbitration refers to a determination in industrial disputes where an arbitrator has to resolve a claim between a trade union and management by making a determination of which of the two sides has the more reasonable position. The arbitrator must choose only between the two options, and cannot split the difference or select an alternative position. It was initiated in Chile in 1979 and has proved to be a very effective mechanism.This form of arbitration is also known as Baseball Arbitration. It takes its name from a practice which arose in relation to salary arbitration in Major League Baseball.Night Baseball Arbitration is a variation of baseball arbitration where the figures are not revealed to the arbitration tribunal. The arbitrator will determinate the quantum of the claim in the usual way, and the parties agree to accept and be bound by the figure which is closest to the tribunal’s award.

Further update: Judge Burgess has approved the stipulation.