and the Workplace
is a common perception that once a lawsuit is filed, it
will go to trial; however, only an extremely small percentage
actually do. A recent study by Marc Galanter, a law professor
at the University of Wisconsin, found that while in 1962
11.5% of all cases in federal courts went to trial, only
1.8% did so in 1992. Many cases are settled, often on the
courthouse steps, but an increasing number are resolved
by alternative dispute resolution (ADR) procedures such
as mediation and arbitration.
relative decrease in court adjudication has partly resulted
from alternatives that are both less expensive and faster.
In addition, litigation results in one side winning and
the other losing, while in mediation, both sides may win.
in Employment Cases
Galanter study also shows that, although the number of cases
involving injuries and contracts has decreased, employment
discrimination and other civil rights cases have increased.
The U.S. Equal Employment Opportunity Commission (EEOC)
alone handles about 80,000 such cases a year. The EEOC works
closely with corporations to bring more of these cases into
its mediation program, which is provided at no charge to
the parties involved. In 2002, almost 12,000 of these cases
went to mediation.
CityBar Center for Continuing Legal Education program discussed
the new workplace ADR program being jointly offered by the
EEOC and some large corporations. This program provides
an alternative to going to the EEOC, and possibly to court,
for alleged workplace discrimination and harassment disputes
that may require enforcement by the commission. Phil A.
Goldman, Mediation Program Coordinator for New Jersey, reported
that the EEOC has a new pilot “referral back”
program for companies that prefer to mediate their own in-house
disputes that are first filed with the EEOC.
that want to participate in this program need to meet certain
EEOC requirements. These include having a voluntary and
free program; a program existing for at least one year;
clear program guidelines and employee communication; coverage
for the same claims as may be filed with the EEOC and their
remedies; and provision for a written copy of any settlement,
which must be enforceable by a court. If cases are not settled
within 60 days, or the employee chooses not to participate
in the program, original remedies may still be pursued.
M. Malin, assistant general counsel of Johnson & Johnson,
and Wokie Nwabueze, director of business ethics and employee
resolution programs of Prudential Financial, reported that
their companies have had excellent results from existing
in-house ADR programs. Along with other companies, they
are also involved in the new EEOC pilot. Goldman said that
there was still time for additional companies, regardless
of size, to participate in the pilot.
Zimmerman, CPA, is an arbitrator and mediator on
the panels of the American Arbitration Association and the