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1 | P a g e
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 factorto consider when reaching a decisionon the best pathway to resolve
the conflict. We are all generally familiar with the litigation process. In short, a plaintiff
filesa lawsuit in the court ofcompetent jurisdiction. Following a lengthy discovery process
which involves the exchange of documents and depositions, motions are filedwhich 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 retireto a room to deliberate before retuning their collective
decision.
2 | P a g e
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 listento 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.
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
3 | P a g e
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 selectionof 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 situations where
ongoing relationships must be fostered in addressing broader goals objectives.
4 | P a g e
Arbitrations are the most formal resolutionprocess 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
selectedby 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 processselectedto 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.
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 enforcethe agreement may be brought in a court of competent jurisdiction.
5 | P a g e
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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Utilizing Alternative Dispute Resolution Tactics in Employment Matters

  • 1. 1 | P a g e 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 factorto consider when reaching a decisionon the best pathway to resolve the conflict. We are all generally familiar with the litigation process. In short, a plaintiff filesa lawsuit in the court ofcompetent jurisdiction. Following a lengthy discovery process which involves the exchange of documents and depositions, motions are filedwhich 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 retireto a room to deliberate before retuning their collective decision.
  • 2. 2 | P a g e 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 listento 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. 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
  • 3. 3 | P a g e 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 selectionof 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 situations where ongoing relationships must be fostered in addressing broader goals objectives.
  • 4. 4 | P a g e Arbitrations are the most formal resolutionprocess 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 selectedby 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 processselectedto 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. 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 enforcethe agreement may be brought in a court of competent jurisdiction.
  • 5. 5 | P a g e 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.