Alternative Dispute Resolution Methods

Topics: Alternative dispute resolution, Dispute resolution, Arbitration Pages: 9 (3093 words) Published: August 22, 2007
It is now commonplace to use Alternative Dispute Resolution (ADR) to resolve employment disputes, including discrimination cases arising under Title VII, the ADEA, and state and local legislation. Employment agreements frequently contain mandatory arbitration provisions that are legally binding and enforceable. In addition, virtually every court or administrative agency empowered to hear discrimination cases now requires mediation as part of the formal adjudication process (Spangler, 2003) . After explaining briefly these ADR techniques, it is the purpose of this paper to discuss their relative advantages and disadvantages in comparison with traditional litigation. Discussion

There is a wide range of ADR techniques available to assist in resolving issues in controversy relating to workplace conflict. These include negotiation, facilitation (i.e., facilitative mediation), evaluative mediation (neutral evaluation and the "settlement judge" approach), fact-finding, mini-trials, summary trials with binding decision, arbitration, and the use of ombuds, as well as mix of these techniques (The U.S. Equal Employment Opportunity Commission, 2002). Mediation

Mediation is almost always a required procedure built into the litigation process to divert cases away from the court and voluntarily selected by the parties to secure a prompt and cost-effective resolution of an employment dispute (Baker and Ali, 2002). Either way, the parties appear before a neutral third party who is commonly a lawyer familiar with employment law and/or litigation. The parties meet initially to discuss ground rules and to sign a mediation agreement that invariably contains a provision making strictly confidential all matters and proposals discussed in mediation. During the initial session, the mediator often asks each party to discuss the merits of the case as well as potential settlement alternatives. The mediator talks separately and privately with each of the parties in order to explore in depth settlement alternatives. The mediator may repeat this process several times with or without further common sessions until an acceptable resolution of the controversy is reached. Mediation plays a useful role whenever the parties prefer settlement to protracted litigation and, better yet, allows the parties to devise a solution that suits their particular needs without the limitations imposed by the legal process (Baker and Ali, 2002) . Arbitration

Arbitration is often required by legally binding provisions contained in employment contracts or regulatory requirements that are enforceable against the employee (e.g., dispute resolution rules that apply to brokerage and employment disputes in the securities industry). Once again, the arbitrator is commonly a certified neutral third party, but also may be a retired judge or law professor. This private judge is commonly familiar with employment law and/or litigation. Arbitration proceedings are modeled after court proceedings, but they are generally more streamlined and informal. As a result of recent judicial precedent, the process must afford the employee the same fundamental right that he or she would be entitled to receive if the matter had gone to court in the first place. These protections include requiring the employer to pay for virtually all of arbitration costs, including the arbitrators, when mandated by contract or regulatory provision. One key difference is that the parties a mutually select a private judge to hear the dispute, and this individual is only required to issue a brief opinion in the form of an arbitration award at the end of the proceeding. By statute in every jurisdiction, there are summary procedures for enforcement of the arbitration award. Once confirmed, the same court can enforce the arbitration award against the non-complying party in the same manner as any other court order (Rosenblatt, 2006) . Department of Labor Pilot Test

In the 1990's, the...
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