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The history of dispute resolution, mediation and arbitration

Union General Howard Founder of Employment Arbitration

Union General Oliver Otis Howard fought at Gettysburg, Chancellorsville, Antietam, Peninsula Campaign, Chattanooga, Atlanta and the Carolinas. He lost an arm at the Battle of Fair Oaks in Virginia, and received a Medal of Honor. He would subsequently become Founder of Howard University in Washington D.C., Superintendent of the Military Academy at West Point, and author of a number of  books and papers.

Immediately after the Civil War ended, General Howard became Chief Commissioner of the Freedmen’s Bureau with staff members throughout the Southern States providing education and other assistance to former slaves including their new employment arrangements.

During a staff briefing, Howard learned from an aid that field staff was being overwhelmed by requests to resolve disputes between former slaves and former slave owners regarding future employment. Former owners needed workers to operate their business or farm. The former slaves were available since, in most cases, they were still living where they had under slavery.

Here is a discussion between several aids and Howard:

Howard: I assume former slaves are reluctant to move from where they have spent their entire lives working and raising their families. They lack life experience beyond that little plot of land.

Aid: Yes. But, while they lack worldly skills, they have the skills their former owners needs.

Howard: That suggests a perfect arrangement. An employer needing employees and skilled employees on the premises.

Aid: Yes. If only they could agree on what the new working and living conditions should be. It is a difficult transition from being a slave to a freeman. Difficult on both sides, with many questions to decide. Will a former slave and his family be paid and how much? Will they be charged for their housing and food, such as it is? We certainly don’t have the answers, but they are looking to us to solve their problem.

Howard: Those are very difficult questions. We need someone as wise as King Solomon to resolve such disputes. From the Bible I know Solomon could handle difficult problems. What about a King Solomon-like arrangement in which a wise individual would listen to both sides and then decides what is fair and just? I wonder if someone from the Bureau could do that?

Aid: Since we are in a certain position of authority, and, after all, the parties, or at least the former owners, have come to the Bureau for help. Maybe the Bureau could decide the issues.

Howard: The problem will be getting the parties to accept the Bureau decision. They might be more willing to accept the process if each side had someone to help the Bureau make the decision.

Aid: The Bureau representative would be the head arbitrator, if we can use that word. And each party could designate their own arbitrator to join our arbitrator in making the decision on what is fair and just.

Howard: I believe such a process should be tried on a few cases. Test it out. See what reaction we get. I think I will act as arbitrator on the first few cases to get it off to a good start. Would you arrange that?

Aid: Yes sir. I’ll make the arrangements.

Howard’s process is probably the earliest example of resolving disputes between workers and employers. By the beginning of the 20th century, government began encouraging such a practice, and by the mid 20th century, grievance arbitration was a widely use process for resolving disputes arising in collective bargaining agreements.

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