Alternative Dispute Resolution

Alternative Dispute Resolution

1. Confidentiality

   • Mediation provides an unparalleled level of confidentiality regarding settlement, witness statements and any other details of the ultimate resolution reached. When taking a dispute to court it becomes public record.

2. Customized Remedies

   • A court can only determine a "winner or loser" but with Mediation - real compromise can be made. An apology to an employee could go a long way in settling a dispute. People are more likely to accept a result that they crafted with a mediator’s help. The “we built that” mindset can work in dispute resolution. The experience of mediating may strengthen collaborative skills between the employer and the employee and improve working conditions for the future.

3. Money Saver

   • Litigation is expensive!  Beyond legal fees, litigation has hidden costs. For example, your employees spend time preparing documents and testifying in depositions instead of adding value to your business. Even when employees are not helping a lawyer to prepare the case, the distraction of the ongoing conflict can take a toll. Your business may even suffer from a tarnished reputation or damaged relationships from the public airing of a dispute. Moreover, in cases where a dispute involves a current employee, there is an additional kind of savings: Mediation is more likely to lead to reconciliation between employer and employee. In the long run, this reconciliation yields reduced employee turnover and improved morale.

4. No Lawyer on your side

   • The court room is designed to keep things fair to both parties. Mediation typically has no formal rules. This means that if one party is timid and the other is loud and aggressive, the timid person runs the risk of losing some of what is legally owed to him. Mediators have some skills that may help restore balance, but there is a limit to what they can do.

5. Non Agreement

   • Mediation does not always result in a settlement agreement. You might spend  time and money in mediation only to find that you must have your case settled by a court. Opting for mediation presents a risk. Also, if mediation fails, much of a party’s “ammunition” might have already been exposed to the opposing party, becoming far less useful in the ensuing trial.

6. no formal discovery process

   • If one of the parties to a dispute cannot fully address the case without first receiving information from the other party, there is no way to compel disclosure of such information. The party seeking disclosure must rely instead on the other party’s good faith, which may or may not be enough.

7. Mediator Qualifications

   • Qualifications are dependent upon what state you reside in. Must be 21 or older Be of good moral character Must have required points for education Successful completion of mediator course

8. Mediation

9. Arbitration

   • No Juries
     • Arbitrators tend to be more predictable and reasonable in awarding damages. Outcomes are more likely to turn on the merits of the claim, rather than on an evidence ruling or the whims of jurors.
   • Privacy
     • There are no public records in arbitration and the media does not have access. The results of the arbitration are also confidential.
   • Injunctive Relief
     • In court, an employer can obtain a temporary restraining order if an employee is stealing trade secrets, working for a competitor, or engaging in similar misconduct. This remedy is not usually available in arbitration, although it can be carved out in an arbitration agreement.
   • Administrative Charges
     • Arbitration does not prevent agencies such as the EEOC or the DOL from investigating an employee’s complaint
   • Finality
     • The reduced ability to appeal can be a double-edged sword. Rights of appeal are limited to serious arbitrator misconduct, bias, corruption, and acting outside the scope of authority. Unlike in court, mistakes of fact or law are not grounds for appeal
   • Choice of Arbitrator
     • In court you are assigned a judge with no input from the parties or their counsel. In arbitration, both sides can choose from a list of arbitrators, giving each side some say in who will decide the case and the ability to have an expert in the field as the arbitrator.

10. Qualifications of an Arbitrator

    • Competence, Character, Courage, Commitment & Compassion