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 MostLeast Trial & Appeal Arbitration Mock Trial Minitrial Mediation NegotiatedSettlement

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 OpinionsPosition-Based- Parties State Opinions Interest-BasedInterest-Based

NEGOTIATION METHODS  Distributive  Zero-Sum  Positional  Competitive  Integrated  Win/Win  “Interest Based”  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 StatementView Statement ExchangeExchange Discuss Options- CaucusDiscuss Options- Caucus AgreementWritten/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  Personal Empowerment  Preservation of an Ongoing Relationship or Termination of a Relationship in a More Amicable Way  Preservation of an Ongoing Relationship or Termination of a Relationship in a More Amicable Way  Workable and Implementable Decisions  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 9 U.S.C. §1 et seq. “…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.” “…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.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.The employee must agree, in writing. But like other contracts, arbitration agreements are subject to contract defenses.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.Under California law, arbitration agreements will not be enforced if they are “unconscionable,” both procedurally and substantively.unconscionable

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.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.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?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 (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?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: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: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.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.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 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).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.Under EEOC, possible remedies include attorneys’ fees, back pay, front pay, reinstatement, hiring, liquidated damages, compensatory damages and punitive damages.EEOC

DISPUTE RESOLUTION ORGANIZATIONS American Arbitration Association (AAA)American Arbitration Association (AAA)American Arbitration Association American Arbitration Association Federal Mediation and Conciliation Services (FMCS)Federal Mediation and Conciliation Services (FMCS)Federal Mediation and Conciliation ServicesFederal Mediation and Conciliation Services Association for Conflict Resolution (ACR)Association for Conflict Resolution (ACR)Association for Conflict Resolution Association for Conflict Resolution –Georgia Chapter Georgia ChapterGeorgia Chapter Dispute Resolution Section of American Bar AssociationDispute Resolution Section of American Bar AssociationDispute Resolution Section of American Bar AssociationDispute Resolution Section of American Bar Association