As an experienced White Plains Employment Lawyer I am often asked about the positives and negatives of mediation vs. going to court. Many of our clients have heard the phrase alternative dispute resolution, and alternative dispute resolution takes many forms. The alternative is an alternative to going to court. The most popular forms are arbitration and mediation, and although people think those are the same things, they are completely different things. Arbitration is simply done by agreement, sometimes the employee doesn't realize he has entered into an arbitration agreement when he signs an employment agreement but many of them have arbitration agreements which require you to resolve a dispute by arbitration rather than going to court. Arbitration is more like a judicial forum in that there is one arbitrator, three arbitrators, or a panel of arbitrators but the arbitrators act as judges. They are there to hear evidence, take testimonies, look at documents, and render a decision. I’m not saying that the arbitrator won’t try and settle the case, but they are there to perform the function of deciding the case. The arbitrary form may be less expensive depending on the case, there may not be much discovery, i.e. deposition, change of documents although there will be some, there are few rules of evidence that can be beneficial depending on your point of view but it typically takes a shorter period of time to come to resolution. When an arbitrator or a panel decides a matter there is virtually no way to challenge it. Most arbitration provisions say that the arbitration decision is binding unless the arbitrator or the panel has exceeded their jurisdiction which is set out by agreement. In the case where that jurisdiction is exceeded there are provisions in the New York state civil practice and procedure law section 75 article 75 for challenging that but it almost never is successful.
Mediation is a very different form, and has very different skill sets from an arbitrator. A mediator is by agreement, but there are times where a mediator is on the scene to bring the parties together in resolution and not to decide who is wrong or right in the dispute and it represents a different focus and a different set of abilities. I say that mediation is voluntary but that’s not always true. Parties can always decide to mediate a dispute, they can hire any mediator they chose or they can go through any of the mediation companies that are now around the country. For example, in the United States District Court for the southern district of New York, if you file a complaint and the only claim in the complaint is discrimination in employment, the court will direct you to go to mediation. In that case, it’s a mediation before a member of a panel of voluntary mediators, mediators who are attorneys who are performing a free service as an aide to the court, it is not always a mediator who has experience. In employment discrimination law, there may be securities lawyers, they may be criminal lawyers but it is a mandatory program and while we initially felt that program would not be successful I would say that we have resolved cases in that program with mediators who knew nothing about this area of law without the need of extensive and expensive exchange of documents deposition and trial.
Are you trying to decide between arbitration and mediation? If so, contact the experienced White Plains Employment Lawyer Jane Gould.