Mediation is defined as an intervention to settle a dispute: the intervention by a third party between two sides in a dispute in an attempt to help them reach an agreement (www.msn.com).
Arbitration is defined as the process for resolution of disputes: the process of resolving disputes between people or groups by referring them to a third party, either agreed on by them or provided by law, who makes a judgment (www.msn.com).
The definitions have been established and it is now time to ask a few questions.
What are the advantages and disadvantages to mediation and arbitration in the effort to resolve a dispute? What are the practical consequences of the Supreme Court’s decision in the Waffle House case to the implementation of arbitration in the workplace? After considering the consequences, does this mark the end of arbitration agreements as a means of keeping employment disputes out of the courts? These questions will be answered in the following paragraphs that will describe the advantages of “med-arb” in conjunction with conflict resolution. For purposes of this case assignment, the term “med-arb” will refer to any reference combining mediation and arbitration in sequence.
Advantages
· Resolution can be obtained within a reasonable time.
· Resolution can often be achieved at a reduced cost, mainly because the parties will need to educate only one neutral about the facts and legal issues involved.
· A med-arb proceeding allows the parties more control over the process by giving them the opportunity to pursue a consensual settlement during the mediation phase, but also promising finality by assuring an end to the dispute, if not by agreement then by binding arbitration.
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Alternative Dispute Resolution or ADR refers to a number of various processes that can be used to resolve legal disputes other than by litigation. Recently, methods of dispute resolution which focus on arbitration, mediation and negotiation as an alternative to adjudication have gained notoriety. This notoriety may have been caused by the public perception that ADR methods are less expensive, more ...
· A combined alternative dispute resolution proceeding may enable the parties to narrow their dispute substantially during the mediation phase, often leaving only a few remaining issues to be arbitrated. By agreeing to binding arbitration of the remaining issues, the parties can preserve the fruits of their partial agreements and prevent the mediation from failing.
· Med-arb may also enhance the parties’ ability to select a form of arbitration that maximizes their control over that phase of the process as well, for example, by limiting the arbitrator’s discretion to a choice between the parties’ best offers, or within the range bounded by those offers.
Disadvantages
· The parties’ willingness to share information candidly with the neutral during the mediation phase of the proceeding may be inhibited because they know the mediator could later become the arbitrator.
· The neutral’s conduct of the mediation phase may be inhibited because the neutral knows that he or she will become an arbitrator if the parties do not reach an agreement.
· Confidential information obtained by the neutral during the mediation phase may be used by, or influence, the neutral during his or her deliberations as arbitrator.
The practical consequences of the Supreme Court’s decision in the Waffle House Case will benefit the workforce. Yes, there is that fear that arbitration is no longer a factor after being shot down by the Supreme Court, but other avenues have been cleared in this case. “Theoretically, it opens employers up to more exposure and claims, although practically speaking, the level of commission-initiated litigation over the last decade has been from 150 to 350 cases per year,” said Gerald L. Maatman Jr., chair of the global employment law practice at Baker & McKenzie in Chicago. He noted that the ruling does not authorize a new category of damages and confirms that employers do retain defenses against EEOC lawsuits. (Hofman 2002)
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“Hence, employers who have used workplace employment agreements to reduce their exposure to individual lawsuits-and reduce their costs of litigation by transferring those cases into arbitration will continue to enjoy those benefits, but their employment practices will continue to be at risk to challenge by the EEOC where the commission decides it needs to sue to effectuate changes in the workplace through no monetary relief,” he said. (Hofman, 2002)
The workforce must be protected and that is the precedent that has been instituted in this situation. This ruling does not lessen arbitration. The ruling simply takes practices a step further in allowing the EEOC to step in and assist the employee when the practices of the employer are of injustice. This is my mind is the practical consequence of the Supreme Court’s ruling. The quote by Gerald L. Maatman Jr. simply addresses the question of marking the end of arbitration as a means of keeping employment disputes out of court.
I have established the advantages and disadvantages of mediation and arbitration in conjunction to the resolution process. Time and resources are definitely the key factors concerning the decision to enter into med-arb. The practical consequence of the Supreme Court’s decision on the Waffle House case to the implementation of arbitration in the workplace was simply stated. Arbitration is still the main tool in keeping cases out of the courts, but specific organizations such as the EEOC have the ability to interfere and protect the employee. After reading the article and reviewing the background information, this does not end arbitration as a means of keeping employment disputes out of the courts.
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References
http://encarta.msn.com/encnet/features/dictionary/dictionaryhome.aspx
Hoffman, Mark A, Arbitration dealt a blow. Business Insurance; Chicago; Jan 21, 2002;
