What are the Options for Employment Dispute Resolution?

There are four options for employment dispute resolution: pre-litigation dispute resolution, mediation, arbitration, and traditional court resolution.

The major advantage to this type of resolution is that you don’t have to involve a third party like the EEOC, the courts, an arbitrator, or a mediator. The best way to resolve an employment claim is directly between employee and employer, because they’re the ones who are familiar with the working environment. They are best suited to resolve the case. Most of our firm’s cases settle before we get to the lawsuit stage because we can quickly get in, assess what the legal exposure is, work a solution with the other side, and get out. That is always my preference, because I find once you get a third party involved where somebody else is crafting your resolution, you can’t control the result, and you end up with unpredictable or unsatisfactory outcomes.

Many employment cases don’t go to court, because it’s such a long path to get there. Since these cases take so long, attorneys’ fees always factor into the decision to settle. For many companies, it becomes business prohibitive to continue litigating a case. If a company is willing to walk away from a case and the other side is being very reasonable with their settlement position, you want to seriously consider settlement, due to the opportunity cost involved in being stuck in court. It is time-consuming and time is our most non-renewable resource. I strongly recommend settling a case if it’s a reasonable offer.

Mediation and arbitration are carried out by a neutral third party and are both confidential. Mediation is non-binding, while arbitration is binding. I advise against using arbitration, because you have no appeal as of right if you lose.

However, some prefer arbitration because it is confidential, and can be faster than court litigation. You can go through many different forums for arbitration. A common one is the American Arbitration Association (AAA). You can either have one arbitrator or a panel of multiple arbitrators deciding your case.

Note that an arbitrator is not required to have a law degree or even have experience arbitrating cases. I’ve had better success and outcomes in the courts as opposed to in arbitration because my clients have an appeal right with court litigation. Also, since the courts around DC, Maryland, and Virginia have excellent judges, I recommend the courts over arbitration. Generally, you can get in and out of a lawsuit within one to two years if you’re doing your job right and staying on top of all your deadlines.

Mediation is helpful to understand each side’s position, if they are willing to give the process a chance. In some court cases, you are required to go through mediation. If you go through the Equal Employment Opportunity Commission (EEOC) process, mediation is available if both sides agree to mediate. If the company has high legal exposure, I recommend mediation to assess the other side’s willingness to settle, and to try to resolve the case at the mediation stage.

If a claim proceeds past the EEOC stage to court then, depending on the jurisdiction, a company may be required to participate in court-ordered mediation. I’m a fan of mediation if both sides agree to it. If both sides are willing to play ball and come into a mediation with an open mind, it can be very helpful.

If mediation does not work, then litigation is typically the next option. You should avoid litigation if possible, because it’s like gambling; the outcomes are arbitrary, and you never know how it will end up.

Litigation is not the only option for resolution if mediation falls through. You can continue to negotiate the matter through legal counsel. If there is a good lawyer on the other side, you should consider discussing settlement at each stage of the case.

For more information on Employment Dispute Resolution in Virginia, DC and Maryland, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (703) 896-7704 or emailing our firm at katie@lipplawfirm.com.