Sometimes litigation is the best or only strategy. Other times, because of the nature of the underlying dispute or the personalities or relationships of the disputing parties, the matter may be better suited for arbitration, mediation, or some other form of alternate dispute resolution.
Arbitration & Alternate Dispute Resolution (ADR)
Arbitration
Arbitration is a process where a private arbitrator, rather than a judge in a public courtroom, applies the law to the facts of the case and issues a ruling. That ruling can be binding or non-binding, depending on the circumstances. The arbitrator is usually a former judge or experienced lawyer. The goal of arbitration is to provide the disputing parties with a resolution that is faster, less formal, and less expensive than a public trial.
The decision to go to arbitration can either be mandatory or voluntary. In most situations, the dispute end up in arbitration, rather than in litigation, because one or both of the parties signed a contract that requires any dispute between them to be heard before an arbitrator rather than in court.
This is increasingly common in employment law – employers hoping to avoid the cost and disruption of public litigation, and the seemingly random results that it produces, are increasingly requiring employees to sign mandatory arbitration agreements. Employees and their lawyers often challenge these agreements, but employers always fight to enforce their arbitration agreements because employers feel that arbitration is more fair, more private, less expensive, and less arbitrary than litigating in a public courtroom in front of a judge.
At Workplace Legal, we have arbitrated many cases where an underlying contract signed by one or both parties compelled their dispute to be heard in arbitration. In some of those cases, the employee challenged the underlying contract and tried to get the case into litigation – but we successfully defended the employer’s contract and kept the case in arbitration. We have also arbitrated other cases where the court ordered the parties into arbitration after months of aggressive public litigation. We have also been involved in fierce public litigation on issues so complex that we’ve decided, along with our opposing counsel, to move the dispute to private arbitration so that the parties could select an arbitrator with the background and expertise that both sides felt was necessary in order to produce a fair hearing and fair outcome in the matter.
Mediation
Mediation is an entirely different process. Whereas in arbitration an arbitrator issues a final ruling that determines who “wins” and who “loses,” in mediation a mediator helps both parties find their way to a mutually satisfactory resolution.
A mediator has no power to issue any decisions or rulings; instead, the mediator, who is often a former judge or experienced lawyer trained in conflict resolution and problem solving, hears each side’s view of the dispute and then works with each side to explore creative, alternative solutions and compromises. The mediator intentionally fosters an informal, cooperative, and problem-solving atmosphere to try to get the parties to focus less on the details of the dispute and more on potential solutions to it and the benefits to be gained by resolving it. In the hands of a skilled mediator, even fierce and protracted disputes can get resolved. At Workplace Legal, we have resolved cases after a day of mediation where the parties started that day millions of dollars apart in their positions.
Because no side wins and no side loses in mediation, there is no risk to participating in mediation other than the time and money invested in the process. If the mediation is unsuccessful, the parties are always free to return to litigation.
Like with arbitration, the decision to go to mediation can either be mandatory or voluntary. In most situations, a case ends up in mediation voluntarily – after months of expensive litigation, after depositions have occurred and documents have been produced, both sides start to see the case from a different perspective. The case started with both sides saying “it’s not about the money, it’s about the principle – this is wrong,” and that fueled the fight.
But over time – after new evidence comes in and both sides have received and paid expensive legal bills – both sides start to soften. Whereas principles fueled both sides in the early going of the case, now both sides are seeing more risk and more cost. This causes both sides to start making more business-based decisions and less principle-based decisions. It’s at this point where experienced opposing counsel start talking to each other about voluntarily taking their case to a mediator.
But mediation can also be ordered by the court. Judges know that mediation is often successful in resolving disputes, so they often order the parties to mediation. Some courts set a mandatory mediation date when a lawsuit is filed; other courts order the case to mediation after the first or second Case Management Conference. Whenever it is ordered, mediation remains a voluntary process because, although the parties are required by the court to attend the mediation, once it commences the parties are free to end the mediation at any time and return to litigation.
Workplace Legal attorneys have mediated hundreds of employment law cases, from wage and hour and PAGA cases to wrongful termination and workplace harassment, discrimination, and retaliation cases. We have worked with mediators from the largest and most prestigious mediation firms, including the Judicial Arbitration and Mediation Service (JAMS), the American Arbitration Association (AAA), and ADR Services, Inc. We have also mediated many complex cases with California’s most sought-after private mediators.
Early Neutral Evaluation (ENE)
Early neutral evaluation (ENE) is yet another ADR option. In most cases, the court appoints an ENE expert with expertise in the subject matter of the dispute. The goals of ENE are to enhance communicating between the disputing parties, to identify and narrow the central issues in dispute, and to provide an early assessment of the merits of the case by a neutral expert. Settlement is not necessarily a goal of the ENE process; however, ENE often facilitates the resolution of a case by cutting through the extraneous issues and focusing both sides of the heart of the dispute. Workplace Legal has participated in court-ordered ENE in both state and federal courts. We have also managed ENE processes for our own clients who want an outside expert’s opinion on a subject prior to commencing or mounting a defense to litigation
OTHER PRACTICE AREAS
