Jottings By An Employer's Lawyer

Wednesday, April 18, 2012

An Arbitration Sign of the Times

If you think arbitration is not a significant player in employment law dispute resolution, you would have to think twice when you see that the National Institute for Triall Advocacy (NITA), one of the best known training programs for trial lawyers is holding their first Arbitration Advocacy May 18-20, 2012.

The opening paragraph in the email I received made that point:
In looking at the below list of topics covered in this program your first inclination may be to think this is another of NITA's Trial Advocacy programs. While similar in some regards this 3 day learning-by-doing program is in fact NITA's first Arbitration Skills program.

And like all NITA programs, this one promises to be a hands on experience, culminating in conducting a full arbitration.  Here's a link to NITA's program site if you are interested.

The fact of the matter is although the battles continue over the finer points of enforcibility, and Congressional action could in one fell swoop totally eliminate it, for the foreseeable future, arbitration of employment disputes is very much a reality.

Arbitrations are not the same as trials, and while I think it will be quite some time before we hear anyone refer to themself as an "arbitration lawyer," making sure you understand the difference between the two is important.

Arbitration is much more akin to a bench trial, but one with even more liberal standards of admissibility of documents and testimony.  I think it is also a much "cooler" forum, where emotion as a general rule is much less likely to be found and to carry as much weight.

For the advocate, perhaps one of the big differences is the timing of the feedback. For better or worse, when a case is submitted to a jury, in a matter of hours, or at most days, you will know what the factfinder thought of your case.  In arbitration, as with bench trials, there is no instant gratification (or depression)

Even in relatively recent times, results were delivered in the mail, but today, when you have an arbitration case pending decision, almost any email could be the one carrying the news. 


I recently read that some companies are opting to have employees sign waivers of jury trials in employment disputes instead of having them agree to arbitration, as an appeal of a bench trial is much easier than
an appeal an arbitration decision. Any thoughts on arbitration v. a bench trial? Do you know if the EEOC has taken any position on waiver of jury trials?
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