Practice Areas: Arbitration
Arbitration is a more formal (compared to mediation) form of alternative dispute resolution. It is still a private process (compared to court proceedings), however, it does have formal rules and the parties are bound by the decision of the arbitrator.
Arbitration can take different forms on different levels at different spheres (there can be one arbitrator or a panel; the parties may be able to stipulate to certain rules or they have to follow the rules of the arbitration court or body, etc.)
Most often, in Employment content, an employee will find himself/herself in arbitration process in two situations. First an employee may have to participate in an arbitration proceedings after the union grievance was brought and was not resolved during the step hearings. Second, an employee might have to arbitrate his/her claims rather than going to court if the Collective Bargaining Agreement that an employee is bound with has a mandatory arbitration clause.
Whatever the case is, the main thing to remember is that an arbitration is actually a mini trial in before a neutral judge, an arbitrator. Unlike in court proceedings, often, parties have a choice and can agree on the persona or a panel of arbitrators.
The rules of arbitration commonly used can be found on the AAA website
A comparison study regarding effectiveness of employment arbitration demonstrated that the monetary award to an employee in an arbitration process is usually less than in court proceedings, however, the arbitration process is faster. Also, the studies show that an employee is less likely to prevail in an arbitration case than in litigation.
How an arbitrator will be deciding a case?
Just like in court, an arbitrator will take into consideration evidence the parties will present: documents, tape and video recordings (if any), witnesses’ testimony, expert reports, business records, etc. After the hearing, an arbitrator will issue his/he decision.
There is no doubt that a mandatory arbitration clause overall favors an employer. However, once an employee signed the contract and if the contract to arbitrate has been found mandatory (the courts generally favor arbitration agreements and will uphold them), an employee has to do his/her best to maximize the effectiveness of the process.