ADR and the Workplace

By Philip Zimmerman

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It 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.

This 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.

Mediation in Employment Cases

The 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.

A recent 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.

Employers 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.

Donna 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.

Philip Zimmerman, CPA, is an arbitrator and mediator on the panels of the American Arbitration Association and the U.S. EEOC.




















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