Employment arbitrations usually involve statutory or common law issues and individual claimants, although multiple claimants and class actions can occur. They can involve litigated issues as varied as claims of unlawful discrimination, sexual harassment, wrongful discharge, employment contracts, employee benefits, ERISA claims, withdrawal liability, and any of the myriad disputes that can arise between employers and employees. These cases can come to arbitration as a result of prospective agreements to arbitrate future disputes, ad hoc agreements to arbitrate an existing dispute, or employer-imposed conditions of employment. In all cases the agreement or program will specify issues subject to arbitration as well as procedures for designating the arbitrator and for conducting the arbitration. The arbitrator will decide disputed issues of fact, determine disputed issues of law or rules, and apply the law to the facts to produce a decision on the questions submitted to his or her arbitral jurisdiction that will be subject to enforcement, modification, or vacatur in accordance with applicable law.
Like arbitration, mediation can occur in both employment and labor-management settings. Unlike arbitrators, mediators have no power to decide issues or affect any rights or outcomes. Mediation is voluntary; nothing happens without parties’ agreement – no process and no settlement. Mediation is confidential; everything that’s said or done (short of a crime) that’s not otherwise discoverable can be used as evidence in any other proceeding. And the mediator won’t divulge anything to the other side that was told in confidence without asking for and receiving your express permission to do so. And, unlike litigation, which is a crap-shoot and which will result in a win or a loss, successful mediation produces an absolute, certain, and enforceable outcome. Mediation can occur before or during litigation and can include any or all of the following services: convening and conducting meetings among parties to identify and address issues that may require consideration or action to expedite, simplify, or settle the dispute; assisting parties to achieve stipulations of fact, evidence, or procedures; proposing alternative dispute resolution procedures that might help simplify or resolve issues; and any other impartial activity that may expedite or simplify case preparation or advance voluntary resolution of any or all issues. Although “win-win” outcomes are desirable and can occur, the likely result of successful mediation is “can live with–can live with,” a mutually-acceptable level of dissatisfaction.
Med-Arb is a non-traditional ADR process that combines both mediation and arbitration. In med-arb, disputing parties retain the neutral to mediate specified issue(s) and, if mediation fails to resolve any or all issues, to arbitrate the remaining issues. It requires trust that, if mediation efforts fail, the arbitrator can decide the issues on the arbitration record without considering or being influenced by ex parte information learned in the mediation process. Power-to-decide increases the mediator’s persuasive authority but must be exercised with great care to avoid the appearance of pre-judgment or unfair bullying.
If you are involved in an employment dispute, consider John Sands to serve as your arbitrator or mediator. John has done exclusively neutral work since 1973, has been selected to arbitrate and mediate more than 4,000 cases, and is a leader of his profession. To learn more, contact John at 973-226-6620 or by email at js@sandsadr.com.
