Up for arbitration - alternative dispute resolution - Brief Article

Black Enterprise, Jan, 1999 by Phaedra Brotherton

How to get the most out of alternative dispute resolution programs

That's it! You're convinced that you didn't get the promotion because of your age. In fact, looking around the company, you've noticed that most of the people in the top positions are several years younger. While you don't want the hassle of filing a discrimination suit, you do want restitution. What are your options?

With a little investigation, you might learn that your firm is one of the growing number of companies that have instituted an alternative dispute resolution (ADR) program. Often faster than going to court, ADR programs use objective interceders to solve sticky workplace conflicts.

"The benefits of ADR are that costs are lower, disposition is faster and privacy is maintained," says Toni Griffin, a spokeswoman for the American Arbitration Association, a nonprofit organization that provides impartial mediators and arbitrators to hear and resolve cases. "Often the disputing parties can salvage and continue their relationship."

The number of employment cases filed with the Association has more than doubled from 575 in 1994 to 1,345 in 1997. Cases run the gamut from racial, gender and age discrimination to unfair firings. Although ADR programs vary from employer to employer, many include informal methods that encourage you to discuss your problem with your supervisor, a department head or a panel of peers. The two best-known ADR methods are mediation and arbitration.

In mediation, a neutral person trained in resolving conflicts helps both parties come up with a solution by helping them to negotiate and discuss the real issues. In arbitration, a neutral person with employment law experience hears the case, weighs the evidence and issues a decision or an award in favor of one of the parties.

"The arbitrator can render all legal remedies you would be entitled to if you went to court," says Gary Singletary, a member of the Society of Professionals in Dispute Resolution. Awards could include back pay, general damages and attorney fees and costs.

Keep in mind that if your company's ADR program has a mandatory arbitration clause and you sign an agreement to go through arbitration, you may waive your right to sue, although this decision may vary depending on the court. To ensure fairness, many programs give you a say in selecting who the mediator and/or arbitrator will be; access to any of the company's history and information to help you make your case; and the right to be represented by an attorney. Some programs cover part of the employee's expense in getting a lawyer.

A potential drawback: generally the arbitration decision is binding, the award is not negotiable and you can't appeal your case. For that reason, mediation is the preferred method for most people, says Bob Meade, senior vice president for the Association. "When parties agree to mediate," says Meade, "they're able to reach a settlement in 90% of the cases."

In mediation, instead of an outside arbitrator, the two parties, with or without an attorney, determine the settlement, which can include a public apology, a change in company policy or monetary compensation.

Paula Brantner of the National Employment Lawyers Association, suggests consulting a lawyer if your case involves anything related to severance pay or other benefits, whether you're going through mediation or arbitration. Bottom line, she says, you shouldn't lose any of your rights by going through the ADR process.

To get the most out of mediation, experts give this advice:

* Have specific dates, times, places and information about your case so you can speak with accuracy.

* Brainstorm possible solutions you'd be happy with and be prepared to negotiate them.

* Keep an open mind and make sure you understand the constraints the employer may have.

* Be positive and believe that a mutually acceptable solution can be worked out.