ADR Overview

The term "alternative dispute resolution"(also called "ADR") means a dispute resolution process that is an alternative to the usual administrative and legal procedures that determine the merits of complaints. There is increasing use of ADR to resolve disputes that involve employment and allegations of discrimination. Progressive employers and employees are recognizing the advantages of resolving employment disputes in ADR processes that may be less expensive and more effective than the standard procedures. The large majority of employment disputes are resolved before a court trial is conducted. Most of those case resolutions are achieved using one or more ADR processes.

In summary, the usual legal process to complain of employment discrimination begins with the requirement that the "complainant" (or "charging party") file a written complaint with a federal or state fair employment practices agency, within the required time limit. The complaint states the kind of discrimination alleged, and the issues involved. The government agency will handle the complaint following their procedures. Usually the agency will notify the employer about the complaint. The agency may investigate by requesting information and records from the employer and the complainant. The employer may submit a written explanation and defense. Then the agency issues a decision on whether unlawful discrimination occurred. If the agency finds discrimination, it will attempt to settle the case. If the agency does not find discrimination, it will issue a "notice of right to sue" to the complainant. The notice states that the complainant has a time limit to file the case in court.

If a timely complaint is filed in court, the case will follow litigation procedures that may begin with the the plaintiff and the defendant disclosing information about the case. Then these parties conduct "discovery", when they try to learn information from the opposing party using written "interrogatories", and requests for documents, and "depositions" where the parties and witnesses are questioned and recorded by the opposing side. Then the plaintiff and defendant and their attorneys use the discovered evidence to present a trial to a judge and / or jury who will decide whether the employer discriminated against the employee in violation of law. If the court decides that unlawful discrimination occurred, it will order a remedy. If the court does not find unlawful discrimination, the case is concluded, unless it is appealed to a higher court. Many discrimination complaints are dismissed or withdrawn for various reasons during the administrative and court procedures.

In the usual administration and litigation procedures there may be opportunities to attempt to settle the case. These opportunities can be through informal negotiations between the parties, or through formal settlement discussions conducted by the administrative agency or the court. These programs may be called alternative dispute resolution even though they occur as part of the formal administrative and legal procedures.

The most common processes that are called alternative dispute resolution are mediation and arbitration. Mediation is a non-binding process where a neutral professional mediator attempts to resolve the dispute by meeting with the parties, identifyng their interests and settlement desires, and facilitating settlement discussions. The mediator usually does not decide which party is right or wrong, and instead uses persuasion to lead the parties to agreement. If agreement is reached, a written agreement will be prepared for signature by the parties. Some administrative agencies like the EEOC are offering the parties the opportunity to participate in mediation instead of having an investigation and agency decision. The advantages of mediation are that it is a relatively inexpensive process, and the parties participate in developing the terms of the settlement. A disadvantage of mediation may be that the legal merits of the complaint are not formally decided.

Arbitration is a limited fact-finding process where a neutral professional arbitrator oversees discovery of evidence by the parties, and conducts an abitration hearing where both sides in the dispute present their cases. Then the aribitrator issues a decision on the merits of the case, and may order a remedy if unlawful discrimination is found. Arbitration can occur during litigation when the parties are required by the judge to participate in non-binding arbitration before a trial is conducted. Arbitration often occurs as a result of a contract between the parties to participate in binding arbitration of disputes instead of litigation. The agreement to arbitrate may be part of an employment contract between the employer and employee. The rules that are followed in arbitration vary depending on the parties' agreement and the arbitration forum that is used. The advantages of arbitration are that it is usually a shorter and less expensive process than litigation. Disadvantages of arbitration may be that it allows only limited discovery of evidence, and the arbitration decision may not be appealable.

Other ADR processes are used less often. One that is used in federal court is early neutral evaluation ("ENE") where a neutral attorney hears a presentation of the evidence, and gives an opinion on the merits of the case, which may help the parties evaluate the stthe case. Another is a "mini-trial" where the parties agree to have a brief trial before a retired judge or other legal professional who will issue a decision on the case. The results of the ENE or mini-trial are often not binding, and are presented to help the parties evaluate the strength of their cases.

There is more information on ADR available on other pages of this website, and through the links to other websites.

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