EMPLOYMENT ARBITRATIONS AND MEDIATIONS
Many employment contracts now require that parties arbitrate or mediate their disputes. Alternatively, an employer may require employees to sign a separate agreement which obligates them to submit any employment related disputes to Arbitration or Mediation. An Arbitration proceeding is like a court trial, but it differs in many respects. Mediations are completely different from trials and arbitration proceedings and usually involve lengthy negotiation sessions.
Arbitrations
Arbitration is a form of alternative dispute resolution (ADR). It is a way for private parties to sort out disagreements according to agreed-upon rules. Oftentimes, Arbitration Agreements incorporate the rules of established organizations that administer ADR processes such as the American Arbitration Association (AAA). Each party strikes the names of Arbitrators they do not want to hear and decide the dispute and through that process, the Arbitrator is selected. Arbitration hearings are similar though less formal than a Court trial. The parties present their case through witnesses and documents. Each party is allowed to present a pre-hearing argument (called “Opening Statement”) as well as a post-hearing “Closing Statement”.
In addition, each party has the opportunity to file a post-hearing written statement (called a “Closing Brief”) to the Arbitrator. Next, the Arbitrator considers the evidence presented and issues his or her decision called an “Award”. There are very limited grounds upon which an Award can be appealed to a state or federal court and include that the Award was obtained through dishonesty or corrupt practices, that the Arbitrator was biased or corrupt, or engaged in misconduct, that the Arbitrator exceeded his authority under the arbitration agreement or that the Arbitrator failed to follow agreed-upon procedures. It is rare that there is evidence of Arbitrator misconduct and the Award becomes final and binding on the parties.
However, a party may still go to Court to seek an Order to Compel Arbitration if one party is trying to avoid taking a dispute to arbitration or to enforce an Arbitral Award.
It is noteworthy that the U.S. Supreme Court has held that if an employee files a charge of discrimination against his/her employer with the Equal Employment Opportunity Commission (“EEOC”), the EEOC is not bound to arbitrate even if the employee would be and that upon receiving a “Right to Sue” from the EEOC, . the employee is free to sue his/her employer in Court and is not obligated to arbitrate their claim.
You may decide to represent yourself during arbitration. However, your employer may retain an attorney for the Arbitration especially if the amount at stake is large. Representing yourself may put you at a serious disadvantage, as the other side may be much more familiar with the process.
Deborah is an experienced Arbitration Attorney who has successfully represented employees in over 75 Arbitration Hearings. Please set up an appointment with her to discuss your case.
Mediations
Mediation is a voluntary, informal ADR process whereby a Mediator who is a neutral third party without a stake in the outcome helps disputing parties negotiate and reach their own mutually acceptable agreement. Unlike a Judge, the Mediator does not make a decision or impose a ruling. A Mediator’s role is to facilitate communication, help identify issues, and assist the parties in finding solutions. Mediation is voluntary and non-binding, and if an agreement is reached, it is typically written down and becomes a formal, legally binding contract once signed.
The Mediation Process
Parties, often with their attorneys, select a Mediator and may exchange documents or statements outlining their positions. A preliminary private meeting with the Mediator is common.
The process begins with all parties and the Mediator meeting together. The Mediator establishes the ground rules and explains the process, then each party presents their perspective.
The Mediator usually meets privately with each party to discuss concerns, explore options, and gauge true interests in a confidential setting.
What is said during Mediation is generally kept private and cannot be used in a later Court proceeding unless all parties agree.
Agreement
If an agreement is reached, the Mediator helps to formalize the agreement in a written settlement document. This Agreement becomes a binding contract once signed by all parties.
If NO agreement is reached, the parties are free to continue negotiations or pursue other options, such as Litigation or Arbitration.
Government Agencies Offer Mediation Services To Resolve Employment Disputes
Due to the significant increase in the number of employment discrimination charges filed, the EEOC and the Texas Workforce Commission (TWC) offer the parties the opportunity to mediate their dispute shortly after the charge is filed. Mediation is often successful (over 70% of EEOC Mediations result in a successful resolution), however, many employers refuse to participate in the process. There are many reasons, some perceive that discrimination charges do not have merit, others are confident in their defense, and then others decline Mediation for strategic reasons, they do not believe that the employee will not have funds to file an action in court. However, if a court action is filed, most federal district court judges require that the parties participate in mediation before a discrimination lawsuit moves forward. Unlike EEOC and TWC Mediations, court mediations are not free and both parties are required to pay a private mediator for their services.
Deborah is an experienced Mediation Attorney who has successfully represented employees in numerous EEOC and Court Mediations. Please set up an appointment with her to discuss your case.