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Transcript
Means of Dispute Settlement
 Negotiation
 Alternative Dispute Resolution
Mediation
Arbitration
Minitrial and Summary Jury Trial
Private Judging
 The Courts
 Why Use an Alternative Method?
Alternative Dispute
Resolution Systems
Expense
Time, Cost, Emotions
Most
Least
Trial &
Appeal
Mock
Trial
Arbitration
Negotiated
Minitrial
Settlement
Mediation
A recent survey of
U.S. corporations found
89% had used mediation in the last 3 years
79% had used arbitration
90% viewed mediation as a cost saving measure
Of 449 cases processed by
major ADR providers, 78% of
the
cases that went to mediation
were settled.
Types Of Negotiations
• Position-Based- Parties State Opinions
• Interest-Based
NEGOTIATION METHODS
 Distributive
 Integrated
 Zero-Sum
 Win/Win
 Positional
 “Interest Based”
 Competitive
 Cooperative
Getting to Yes
The Seven Elements of Negotiation
INTERESTS What do people really want?
OPTIONS What are possible agreements or
bits of an agreement?
ALTERNATIVES What will I do if we do not
agree? (BATNA)
LEGITIMACY What criteria will I use to
persuade each of us that we are not being ripped
off ?
The Seven Elements of Negotiation
(cont’d)
COMMUNICATION Am I ready to listen and
talk effectively?
RELATIONSHIP Am I ready to deal with the
relationship?
COMMITMENT What commitments should I
seek or make?
TYPES OF MEDIATION
Evaluative
Facilitative
Transformational
Mediation Procedures
Informal- Controlled By Parties
Mediator
Opening Statement/Rules
Parties
•View Statement
•Exchange
•Discuss Options- Caucus
Agreement
Written/Signed
Why use Mediation?
WHY MEDIATE?
 Economical Decisions
 Rapid Settlements
 Mutually Satisfactory Outcomes
 High Rate of Compliance
 Comprehensive and Customized Agreements
 Greater Degree of Control and Predictability
WHY MEDIATE?
 Personal Empowerment
 Preservation of an Ongoing Relationship or Termination
of a Relationship in a More Amicable Way
 Workable and Implementable Decisions
 Agreements that are Better than Simple Compromises or
Win/Lose Outcomes
 Decisions that Hold Up Over Time
When Should You Not Use
Mediation?
CHARACTERISTICS OF ARBITRATION
Can be voluntary
By contract or agreement
Court-annexed
Binding or nonbinding
Strengths of using arbitration in labor or
employment disputes
 Maintains tranquility between parties for term of CBA
 Assures a final & binding resolution to the dispute
(limited review by the courts)
 Provides fairness & due process because it operates
under procedures to which the parties have agreed
 Parties have a shared role in the selection of the
arbitrator
Strengths of using arbitration in labor or
employment disputes (continued)
The equal sharing of of the arbitrator’s fees &
expenses reinforces the neutrality
May be faster & less expensive than litigation
Pending arbitration encourages mediation
Arbitrators may have expertise in the area.
Limitations in the Use of Arbitration
 Can only address matters covered by CBA.
 Arbitrators’ authority restricted to those in CBA.
 Arbitrators’ findings of statutory violations is not
binding on the courts or agencies.
 Labor arbitration covers only a small % of the
workforce.
 Arbitrators may lack statutory expertise.
 Seems to be under increasing scrutiny by the courts.
SOURCES OF LAW
Federal Arbitration Act
U.S.C. §1 et seq.
9
“…but nothing herein contained shall apply to contracts of employment of
seamen, railroad employees, or any other class of workers engaged in foreign
or interstate commerce.”
See Circuit City v. Adams
HEARING PROCEDURE
Agreement to arbitrate
Pre-hearing conference
Discovery
Hearing
Award
Enforceability of
Mandatory Arbitration Agreements
1
• Mandatory arbitration agreements, requiring employees
to submit their employment disputes to arbitration
rather than bring suit in court, are generally
enforceable.
• The employee must agree, in writing.
• But like other contracts, arbitration agreements are
subject to contract defenses.
• Under California law, arbitration agreements will not be
enforced if they are “unconscionable,” both
procedurally and substantively.
Enforceability of
Mandatory Arbitration Agreements
2
• A contract is “procedurally unconscionable” if drafted by
the party with greater bargaining power and presented
on a “take it or leave it” basis without opportunity for
negotiation or modification.
– Example: cell phone contract
• A contract is “substantively unconscionable” if its terms are
markedly unfair to the less powerful party, particularly
by imposing limits and burdens on the less powerful
party which are not shared by the other.
• What might be some of the
legal concerns associated with
mandatory arbitration?
LEGAL CONCERNS ASSOCIATED WITH
MANDATORY ARBITRATION
Lack of participation in selecting the neutral.
Confidentiality.
Elimination of remedies.
LEGAL CONCERNS ASSOCIATED WITH
MANDATORY ARBITRATION
Adequate notice.
Procedural limitations.
Curbs on discovery.
Time limits for the hearing.
The Ryan’s Family Steak Houses
cases
1.
Floss v. Ryan’s Family Steak Houses, Inc., 211 F3d 306,
2000 U.S.App.LEXIS 8523 (6th Cir. 2000).
2.
Lyster v. Ryan’s Family Steak Houses, Inc., 239 F.3d 943,
2001 U.S.App.LEXIS 1765 (8th Cir. 2001).
3.
Penn v. Ryan’s Family Steak Houses, Inc., 269 F.3d 753,
2001 U.S.App.LEXIS 22408 (7th Cir. 2001).
4.
Walker, et al, v. Ryan’s Family Steak Houses, Inc., 400
F.3d 370, 2005 U.S.App.LEXIS 3915 (6th Cir. 2004).
• What would you include in an
arbitration agreement?
Smart Practice –
Arbitration Agreements 1
• A poorly drafted arbitration agreement is likely to be
unenforceable. If your firm decides to use arbitration
agreements, avoid provisions like these:
– No selection of a neutral arbitrator
– Employee pays excessive fees
– Remedies inferior to those granted by court
– No minimum discovery process
– Many restrictions placed on the employee, but few
on the employer
– Employer reserves the right to change the agreement
at any time
Smart Practice –
Arbitration Agreements 2
• Some firms have tried to establish mandatory
arbitration without gaining knowing consent, raising
contract defenses. If your firm decides to use
mandatory arbitration agreements, make certain that:
– They are in writing.
– They clearly notify employees that they are waiving
their right to sue.
– The employee understands the terms.
– The employee signs in writing to indicate acceptance
of the agreement.
Smart Practice Documentation
• Because employment decisions can have
consequences months or years after the events,
HR managers should be careful to document
decisions and the reasons for them at the time they
occur.
• Such records are useful evidence in the event of
a claim or lawsuit, and can help your firm avoid
liability.
Human Resource Recommendations for
Adopting an Arbitration Agreement
 Consider whether there will be a cost savings in using
arbitration
 State the scope of the arbitration agreement.
 Use simple, understandable terms when drafting the
arbitration agreement.
 Have employees acknowledge in writing having received
notice of the arbitration agreement.
Human Resource Recommendations for
Adopting an Arbitration Agreement
Understand that the EEOC is not bound by the
employee’s agreement to arbitrate.
Determine if a new program should apply only
to new employees.
Consider whether complaints will increase.
Consider whether the roster of arbitrators is
large enough.
Remedies For
Violations of Employment Laws
• Arbitration clauses in collective bargaining agreements
(CBAs) USUALLY do not bar those employees from
going to court.
• Arbitration agreements do not prevent employees from
bringing complaints to government agencies like the
EEOC, which may bring suit (even if the employee
cannot-Waffle House case).
• Under EEOC, possible remedies include attorneys’
fees, back pay, front pay, reinstatement, hiring,
liquidated damages, compensatory damages and
punitive damages.
DISPUTE RESOLUTION
ORGANIZATIONS
• American Arbitration Association (AAA)
• Federal Mediation and Conciliation Services
(FMCS)
• Association for Conflict Resolution (ACR)
– Georgia Chapter
• Dispute Resolution Section of American Bar
Association