Most employment cases settle without ever going to trial, and many use mediation to accomplish settlement. The popularity of mediating to settle employment cases is gaining rapidly. The following is an outline of what you may expect if you choose this alternative to trial.
ADR is the acronym for alternative dispute resolution. Alternative dispute resolution methods are commonly thoughT of as alternatives to resolving disputes through litigation, including a trial. Many commentators believe that methods commonly regarded as ADR methods are becoming more the dispute resolution method, with trial litigation quickly becoming the alternative dispute resolution method.
Conciliation: According to Roberts’ Dictionary of Industrial Relations, conciliation is a process whereby parties seek to reconcile their differences. In the conciliation process a third party acts as the intermediary in bringing the disputing parties together, but acts as a catalytic agent, by being available, but not actually taking an active part in the settlement process. Conciliation is sometimes distinguished from mediation, where the third party actively seeks to assist the parties in reaching a settlement, by making suggestions, providing background information, and noting avenues open to the parties for settlement. Both the EEOC and the Hawaii Civil Rights Commission utilize a form of conciliation to attempt to resolve employment disputes.
Mediation: Is the preferred ADR process today. A non-adjudicative third-party neutral facilitates the parties’ own negotiated settlement, rather than imposing a decision upon them.
Arbitration: Is where a neutral third party listens to and reads the evidence and then imposes the third party’s decision on the parties. It is cheaper, faster, less time consuming, and is confidential. This has been a common method of dispute resolution under collective bargaining agreements for years. More recently it has come into broader use in employment disputes outside any collective bargaining agreement.
Pre-Hearing: A pre-hearing conference can be used when the parties are new to mediation (or one party is) or when either party has not used that mediator before. The pre-hearing can help make the resolution process more efficient, but costs a little in time invested up front.
Whatever process you choose, any time you can get the other side to agree to mediate is probably a good time to try mediation. Cases have been successfully mediated at any procedural posture including on the job; prior to litigation; during litigation; before or after a trial; pending an appeal; prior to arbitration or following arbitration.