Means of Dispute Settlement

1
Means of Dispute Settlement

• Negotiation
• Alternative Dispute Resolution
• Mediation
• Arbitration
• Minitrial and Summary Jury Trial
• Private Judging
• The Courts

2
Alternative Dispute Resolution Systems
Expense Time, Cost, Emotions
Most
Least
Trial Appeal
Negotiated Settlement
Mock Trial
Minitrial
Arbitration
Mediation
3
A recent survey of U.S. corporations found

• 89 had used mediation in the last 3 years
• 79 had used arbitration
• 90 viewed mediation as a cost saving measure

4
Of 449 cases processed by major ADR providers,
78 of the cases that went to mediation were
settled.
5
Types Of Negotiations

• Position-Based- Parties State Opinions
• Interest-Based

6
NEGOTIATION METHODS

• Distributive
• Zero-Sum
• Positional
• Competitive

• Integrated
• Win/Win
• Interest Based
• Cooperative

7
Getting to YesThe Seven Elements of Negotiation

• INTERESTS What do people really want?
• OPTIONS What are possible agreements or bits of
  an agreement?
• ALTERNATIVES What will I do if we do not agree?
  (BATNA)
• LEGITIMACY What criteria will I use to persuade
  each of us that we are not being ripped off?

8
The Seven Elements of Negotiation (contd)

• COMMUNICATION Am I ready to listen and talk
  effectively?
• RELATIONSHIP Am I ready to deal with the
  relationship?
• COMMITMENT What commitments should I seek or
  make?

9
TYPES OF MEDIATION

• Evaluative
• Facilitative
• Transformational

10
Mediation Procedures

• Informal- Controlled By Parties

Mediator Opening Statement/Rules

• Parties
• View Statement
• Exchange
• Discuss Options- Caucus

Agreement Written/Signed
11
WHY MEDIATE?

• Economical Decisions
• Rapid Settlements
• Mutually Satisfactory Outcomes
• High Rate of Compliance
• Comprehensive and Customized Agreements
• Greater Degree of Control and Predictability

12
WHY MEDIATE?

• Personal Empowerment
• Preservation of an Ongoing Relationship or
  Termination of a Relationship in a More Amicable
  Way
• Workable and Implementable Decisions
• Agreements that are Better than Simple
  Compromises or Win/Lose Outcomes
• Decisions that Hold Up Over Time

13
MEDIATION3 Criteria for the mediator to keep
in mind.

• 1. Did you produce a wise agreement?
• 2. Did you improve or at least not damage the
  relationship?
• 3. Is it an efficient agreement?

14
CHARACTERISTICS OF ARBITRATION

• Can be voluntary
• By contract or agreement
• Court-annexed
• Binding or nonbinding

15
Strengths of using arbitration in labor or
employment disputes

• Maintains tranquility between parties for term of
  CBA
• Assures a final binding resolution to the
  dispute (limited review by the courts)
• Provides fairness due process because it
  operates under procedures to which the parties
  have agreed
• Parties have a shared role in the selection of
  the arbitrator

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Strengths of using arbitration in labor or
employment disputes (continued)

• The equal sharing of of the arbitrators fees
  expenses reinforces the neutrality
• May be faster less expensive than litigation
• Pending arbitration encourages mediation
• Arbitrators may have expertise in the area.

17
Limitations in the Use of Arbitration

• Can only address matters covered by CBA.
• Arbitrators authority restricted to those in
  CBA.
• Arbitrators findings of statutory violations is
  not binding on the courts or agencies.
• Labor arbitration covers only a small of the
  workforce.
• Arbitrators may lack statutory expertise.
• Seems to be under increasing scrutiny by the
  courts.

18
SOURCES OF LAW

• Federal Arbitration Act
  9 U.S.C. 1 et seq.
• but nothing herein contained shall apply to
  contracts of employment of seamen, railroad
  employees, or any other class of workers engaged
  in foreign or interstate commerce.
• See Circuit City v. Adams

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HEARING PROCEDURE

• Agreement to arbitrate
• Pre-hearing conference
• Discovery
• Hearing
• Award

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LEGAL CONCERNS ASSOCIATED WITH MANDATORY
ARBITRATION

• Lack of participation in selecting the neutral.
• Confidentiality.
• Elimination of remedies.

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LEGAL CONCERNS ASSOCIATED WITH MANDATORY
ARBITRATION

• Adequate notice.
• Procedural limitations.
• Curbs on discovery.
• Time limits for the hearing.

22
The Ryans Family Steak Houses cases

• Floss v. Ryans Family Steak Houses, Inc., 211
  F3d 306, 2000 U.S.App.LEXIS 8523 (6th Cir. 2000).
• Lyster v. Ryans Family Steak Houses, Inc., 239
  F.3d 943, 2001 U.S.App.LEXIS 1765 (8th Cir.
  2001).
• Penn v. Ryans Family Steak Houses, Inc., 269
  F.3d 753, 2001 U.S.App.LEXIS 22408 (7th Cir.
  2001).
• Walker, et al, v. Ryans Family Steak Houses,
  Inc., 400 F.3d 370, 2005 U.S.App.LEXIS 3915 (6th
  Cir. 2004).

23
Human Resource Recommendations for Adopting an
Arbitration Agreement

• Consider whether there will be a cost savings in
  using arbitration
• State the scope of the arbitration agreement.
• Use simple, understandable terms when drafting
  the arbitration agreement.
• Have employees acknowledge in writing having
  received notice of the arbitration agreement.

24
Human Resource Recommendations for Adopting an
Arbitration Agreement

• Understand that the EEOC is not bound by the
  employees agreement to arbitrate.
• Determine if a new program should apply only to
  new employees.
• Consider whether complaints will increase.
• Consider whether the roster of arbitrators is
  large enough.

25
DISPUTE RESOLUTION ORGANIZATIONS

• American Arbitration Association (AAA)
• Federal Mediation and Conciliation Services
  (FMCS)
• Association for Conflict Resolution (ACR)
• Georgia Chapter
• Dispute Resolution Section of American Bar
  Association