UTLIZING ALTERNATIVE DISPUTE RESOLUTION TACTICS IN EMPLOYEMENT MATTERS

In the employment arena, disputes will arise between employees and employers. There

are numerous methods to resolving the disputes. The best way to resolve any issue is to

reach a mutual agreement between the parties in a method that allows you to have a voice

and control the outcome. A mediation or settlement agreement provides the vehicle for

this goal. On the other hand, the legal and judicial process allows both parties to present

their perspectives but eliminates the ability to control the outcome. We will discuss the

alternative to the judicial process in the pages that follow.

A. When to Utilize ADR in Lieu of Litigation

Alternative dispute resolution, as the name suggests, is an alternative to the courthouse.

There are several factor to consider when reaching a decision on the best pathway to

resolve the conflict. We are all generally familiar with the litigation process. In short, a

plaintiff files a lawsuit in the court of competent jurisdiction. Following a lengthy

discovery process which involves the exchange of documents and depositions, motions

are filed which allows the judge to rule on the case; provided, of course there is no factual

dispute. If the judge cannot make a ruling because the parties have a different version of

the material facts, a trial date is set. The trial requires days of formal testimony presented

to jurors who may or may not be interested in the seriousness of their civic obligations.

After the jury listens to the evidence presented, they retire to a room to deliberate before

retuning their collective decision.

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On the other hand, there are several alternatives available to avoid the courthouse and

jury’s decisions. The alternatives available include; negotiations, conciliation, mediation

and arbitration. There are various factors to consider in reaching the appropriate decision

to engage in one of these alternative resolution techniques or simply place your fate in the

hand of a jury of your peers. Each alternative has a different degree of formality, related

costs and expenses, and length of time associated with bringing a finality to the process.

Most often there is no right or wrong answer. However, the comfort level and binding

nature of the method selected should play a role in the decision making process.

B. Internal vs. External ADR Policies

The goal of any alternative dispute resolution in an employment setting is to resolve a

conflict between two people or an employee and his/her employer to the mutual benefit

and satisfaction of the participants. Internal resolution policies may be developed by a

company to provide an aggrieved employee with a procedural mechanism to present their

case and position. Most often, internal resolution procedures are in writing and provide

the participants with clear guidelines about the procedural guidelines to follow.

For example, an internal dispute policy may require an aggrieved party to meet and

confer in an effort to resolve a dispute as a prerequisite to formal litigation. In other

instances, a company’s policy may require a committee to listen to the aggrieved party’s

complaint and make a recommendation or decision. However, in each instance, the

success is dependent upon a mutual agreement to participate in good faith with an effort

toward resolution.

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On the other hand, alternative dispute resolutions policies are developed and enforced by

an arbitrator or arbitrator(s). The proceedings are typically governed by the rules of the

American Arbitration Association. The procedures typically allow for the exchange of

written discovery and in some instances deposition testimony. The process and

procedures are more formal in nature when compared to internal dispute resolution. The

decision reached by the arbitrator, usually a lawyer or someone with legal training, is

binding on the parties. The arbitrator’s decision can only be overturned if a court/judge

concludes the decision was “arbitrary and capricious.”

C. Mediation, Conciliation and Arbitration

Mediations are voluntary and are held only if agreed to by the parties involved in a

conflict. The parties will agree on the selection of a mediator. The mediator is a neutral

third party, usually a lawyer. The mediator’s role is to facilitate a resolution of the

dispute. The mediator cannot order the parties to settle or make legal decision on any

aspect of the dispute. The mediator’s role, however, serves a useful purpose in forcing

each side to evaluate the potential strength and weaknesses of their respective positions.

The ultimate objective of a mediation is to resolve the conflict and memorialize the

resolution into a formal and binding settlement agreement.

Conciliations are similar to mediations. The parties to a conflict must agree to a

conciliation conference and it is generally presided over by an independent third party

and neutral observer. The conciliation is very informal and inexpensive. The

conciliation conference allows the parties, particularly in emotionally charged situations,

to raise issues without the fear of retaliation. Conciliations are particularly successful in

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situations where ongoing relationships must be fostered in addressing broader goals

objectives.

Arbitrations are the most formal resolution process outside the courtroom. The

arbitration process is governed by rules and procedures and typically requires the skills

and understanding of an attorney to maneuver. The arbitrator’s costs must be paid by the

participants and the fee may be shifted in favor of the prevailing party. The arbitrator is

selected by the parties either by agreement or by a process of preemptive challenges. The

arbitrator’s role is most analogous to a judge and the arbitrator’s decision is binding on

the parties. Typically, the arbitrator’s decision is reduced to writing in a documents

known as findings of facts and conclusions of law. The arbitrator’s decision cannot be

overturned unless there is a showing the decision was arbitrary and capricious.

D, Drafting and Negotiating the Settlement Agreement

There are a couple of thoughts which immediately come to mind when thinking about

drafting and negotiating the settlement agreement – “no job is finished until the

paperwork is completed” and “the devil is in the details.”

Drafting and negotiating the settlement agreement formalizes the agreement reached

between the parties in the process selected to resolve the dispute. The settlement

agreement should accurately reflect the agreement reached and should not include

provisions that were not discussed. Therefore, it is a good idea to bring a proposed

settlement agreement to the resolution event and make sure the terms you desire to

include in the written agreement are discussed.

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The finalized settlement agreement becomes a binding contract between the parties. If a

party to the agreement fails to comply with an obligation contained within the agreement,

a legal action to enforce the agreement may be brought in a court of competent

jurisdiction. The length of the agreement varies depending on the complexity of the

dispute. Despite those complexities, the basic elements of the agreement should contain

statements which reflect the consideration for the agreement and the exchanges and

release of claims. In short, the agreement should say what you mean and mean what you

say.

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