Alternative dispute resolution is a growing trend in resolving labor and employment disputes instead of leaving claims up to the courts and juries. Mediation is particularly common and mediation occurs in almost all employment claims as an opportunity to reach a settlement without going through a costly trial. Arbitration is common in union claims where disputes are governed by arbitration provisions in the collective bargaining agreement. Although arbitration and mediation are considered easier processes than litigation they come with their own challenges and working with an employment lawyer can help protect your rights through these processes with employment law.
Mediation includes a variety of settlement processes where both employer and employee work with a mediator and try to reach a voluntary settlement of the employee’s claims. The mediator is not a judge and does not have the power to order a settlement. The mediator’s job is to facilitate communication between employer and employee to help the parties to find common ground and settle. If the employer and employee cannot reach a voluntary settlement they will leave mediation and continue down the litigation path. Mediation may take place over the phone or in person. It may be formal or informal based upon the mediator’s preferred methodology. Mediation can occur in many stages of an employment dispute. In discrimination cases it is common to mediate after filing a discrimination charge but before a lawsuit is filed. Mediation may also occur after a lawsuit is filed but before trial takes place. The judge in an employment lawsuit may order mediation before trial to help the parties reach a settlement.
An employment attorney can be extremely valuable in mediation. Getting a fair deal in mediation requires understanding the value of your claims, the ability to effectively negotiate and the presence to make the employer credibly believe settlement will be superior to trial. Most employees are not experts in these skills and it is easy to undervalue an employment claim if you do not understand the types of relief permitted by law and the ways juries commonly award them.
Arbitration is a non-judicial approach to resolving an employment dispute. Unlike mediation where the mediator has no power to bind the parties to a resolution, the arbitrator who governs the arbitration process will reach a binding conclusion that the parties agree to follow. If a lawsuit has been filed then the arbitrator’s decision may be entered as an order of the court.
Arbitration involves a formal hearing with both parties and the arbitrator. Depending on the arbitrator’s preference, the hearing can be very formal and court-like or it can be more informal. Arbitration can be a beneficial process because it is often less complex and less formal than litigation. The arbitrator may have more experience dealing with employment issues than a judge. However, arbitration can also be undesirable in certain circumstances.
Arbitration can arise in an employment or labor dispute in three ways. The employee and employer can voluntarily agree to arbitration after a lawsuit has been filed instead of allowing a judge or jury to render a decision. In a labor arbitration, the employee is a union employee and the union contract requires employment disputes to follow the arbitration procedure. Last, an employee may have agreed to arbitration by signing an arbitration agreement at some point in his or her employment. Employers often require employees to sign these arbitration agreements as a condition of employment.
Arbitration is often a more streamlined process than litigation but that does not make it a simple process. There may be litigation-like processes, like discovery, and rules of evidence or procedure may apply. The arbitrator may follow the rules of an arbitration organization or may set his or her own procedures. Understanding the common rules to arbitration can help determine whether your claims must be brought in arbitration and how to best protect your rights through arbitration.
How The Kielich Law Firm can help
If you have an employment or labor claim that requires mediation or arbitration, I can represent you and your claims. You may have employment claims against your current or former employer that may benefit from mediation or arbitration. In representing you, I can determine what path best suits your needs and represent you from start to finish. Contact my office today to discuss your case.