June 24, 2014|
Even if you know you are "in the right," or you have been wronged by another party, it may not be in your best interest to pursue time-consuming legal action. One widely used method to resolve such issues is called alternative dispute resolution (ADR). In particular, ADR is now being used to resolve disputes arising from recently enacted employment laws. The two most common forms are mediation and arbitration. 1. Mediation is an informal settlement conference. The mediator attempts to find a compromise that all parties can accept. If mediation is unsuccessful, parties can then proceed to arbitration. 2. Arbitration is essentially an informal trial before an arbitrator (usually an attorney). His or her ruling may be taken to court where, unless it is found arbitrary or counter to the law, it can be confirmed by a judicial order. Why is ADR being used in employment cases? Years ago, the U.S. Supreme Court required an employee to settle an age discrimination claim after he agreed in writing to submit to ADR. Following that decision, the Supreme Court upheld the use of ADR in a sexual harassment lawsuit. Subsequently, ADR has been used to resolve disputes involving the Americans with Disabilities Act of 1990 and other laws relating to employment. How does an employer take advantage of ADR? With the assistance of a qualified attorney, the appropriate language can be inserted in the employee handbook. The text should describe the company's primary use of ADR to settle employment disputes. Similar provisions may be included in all employment contracts. Caution: The use of ADR can differ from state to state. Some parts of the country have well-established ADR programs using retired judges as arbitrators. In other parts, trade groups have established ADR programs. ADR services are provided in most areas by the American Arbitration Association. If your company is large enough, you may want to use in-house ADR before the dispute is sent to an outside arbitrator. This arbitration can range from a corporate ombudsman to panels consisting of peers of the aggrieved employee and managers. A hearing before a peer review panel, although not binding on anyone, can serve as a safety valve. If the panel finds the company at fault, the company can take quick action to rectify the situation before things get out of hand. Of course, there is a time and place for going to court. But ADR may provide an alternative that appeals to both employers and employees. Make sure to explore all viable alternatives.