Sometimes aggressive litigation is the best or only strategy; other times, however, given the nature of the underlying dispute or the personalities or relationships of the disputing parties, the matter may be better suited for resolution by arbitration, mediation, or some other form of early neutral evaluation.
Arbitration is a process where an arbitrator applies the law to the facts of the case and issues a ruling. The goal of arbitration is to provide the disputing parties with a resolution that is quicker, less formal, and less expensive than a civil trial.
The decision to go to arbitration can either be mandatory or voluntary. The arbitrator is usually an experienced lawyer or judge with a background in dispute resolution. The ruling issued by the arbitrator can either be binding or non-binding.
At Workplace Legal, we have arbitrated cases that were in active litigation but that were ordered to judicial arbitration by the Court. We have arbitrated other cases where the underlying contract between the disputing parties mandated resolution by private arbitration. And we have been involved in fierce public litigation on issues so complex that we’ve decided, along with our opposing counsel, to move the dispute to private arbitration so that the parties can select an arbitrator with a background and expertise in the unique and complicated issues involved in the case.
Mediation is an entirely different process. Whereas in arbitration an arbitrator issues a final ruling that determines who “wins” and who “loses,” in mediation a mediator helps both parties find their way to a mutually-satisfactory resolution. The mediator, who is skilled at conflict resolution and problem solving, has no power to issue any decisions or rulings. Instead, the mediator hears each side’s view of the dispute and then works with each side to explore creative, alternative solutions. The mediator intentionally fosters an informal, cooperative, and problem-solving atmosphere to try to get the parties to focus less on the details of the dispute and more on the benefits each side will realize from resolving it.
Like with arbitration, the decision to go to mediation can either be mandatory or voluntary. The mediator is often an experienced lawyer or judge who has received extensive training in collaboration and conflict resolution. In the hands of a skilled mediator, even fierce and protracted disputes can often get resolved. And there is no “risk” to mediation other than the time and money invested in the process. If the mediation is unsuccessful, the parties are free to return to litigation.
Workplace Legal has extensive experience mediating all types of employment claims, from breach of contract matters to wrongful termination cases to claims of workplace harassment, discrimination, and retaliation. We have worked with mediators from the largest and most prestigious mediation firms, including Judicial Arbitration and Mediation Service (JAMS), the American Arbitration Association (AAA), and ADR Services, Inc. We have also mediated many complex cases with California’s most sought-after private mediators.
Early Neutral Evaluation (ENE)
ENE is yet another ADR option. In most cases, the Court appoints an ENE expert with expertise in the subject matter of the dispute. The goals of ENE are to enhance communicating between the disputing parties, to identify and narrow the central issues in dispute, and to provide an early assessment of the merits of the case by a neutral expert. Settlement is not necessarily a goal of the ENE process; however, ENE often facilitates the resolution of a case by cutting through the extraneous issues and focusing both sides of the heart of the dispute.
Workplace Legal has participated in Court-ordered ENE in state and federal courts across California. We have also managed ENE processes for our own clients who want an outside expert’s opinion on a subject prior to commencing or mounting a defense to litigation.