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36
STRATEGY

Staying Out of Court

Advice and resources on using alternative dispute resolution (ADR) to settle employee disputes out of court.
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Chalk it up to frustration with the court system, the high cost (and snail's pace) of judicial proceedings, or just a lack of confidence in outcomes -- but an increasing number of people who might otherwise battle out their differences in court are turning instead to alternative dispute resolution. Either you hire a private organization to sponsor ADR or a judge may refer you to a "court-annexed" program. Under both circumstances, ADR can dramatically reduce the time and money you would otherwise spend to reach a settlement. According to lawyer Gordon Katz of Boston-based Sherburne, Powers & Needham, the following formal ADR approaches are the most appropriate for employment-related disputes:

1. Early case evaluation. Participants, often through their lawyers, make presentations to an independent evaluator chosen by the sponsoring organization. As in all ADR, says Katz, "it's critical that the evaluator have credibility with both sides." The evaluator assesses the strengths and weaknesses of the arguments, and predicts the likely outcome should the parties continue the process.

2. Mediation. A mediator listens to arguments from both parties and then meets with each side separately in an attempt to reach a settlement. According to Robert Meade, vice-president of program development at the American Arbitration Association, "mediation has proved to be more than 80% effective in solving employment cases." Mediation is not binding. That means, for instance, that an employee who is dissatisfied with a mediation retains the right to take the employer to court.

3. Arbitration. This process is very like a trial without a jury; while a mediator is a facilitator, an arbitrator is more like a judge. Participants submit evidence to support their positions, and the arbitrator hands down an opinion that can be either binding or nonbinding. If you opt for binding arbitration, you forfeit your right to go to court unless you can prove the arbitrator was biased or failed to receive all the evidence presented.

ADR has been most commonly used in cases of discrimination, wrongful termination, breach of contract, and sexual harassment. According to Meade, employers and employees who use ADR can expect to spend significantly less time (the process usually takes 30 to 60 days) and money ($2,000 to $3,000) than they would in court proceedings.

* * *

For more on ADR, contact --
· The American Arbitration Association (212-484-4000). Ask for
Resolving Employment Disputes: Model Employment Arbitration Procedures .

· The Society for Human Resource Management. Send $10 to SHRM Accounting Dept., 606 N. Washington St., Alexandria, VA 22314, and ask for the Spring 1994 Legal Report on Binding Arbitration.

Last updated: May 1, 1995

DONNA FENN is the author of Upstarts! How Gen-Y Entrepreneurs Are Rocking the World of Business and 8 Ways You Can Profit From Their Success, an exploration of the ways Gen Y is changing the entrepreneurial landscape.
@donnafenn




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