Mediation in Labor Arbitration and Employment Litigation Cases

• Publication year: 1989
• Pages: 883
• Citation: Vol. 05 No. 1989 Pg. 883

18 Colo.Law. 883 Colorado Lawyer 1989.

1989, May, Pg. 883. Mediation in Labor Arbitration and Employment Litigation Cases

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Mediation in Labor Arbitration and Employment Litigation Cases

by John M. Husband

More so than other lawyers, labor lawyers have long been familiar with alternative dispute resolution ("ADR") systems. Any experienced labor lawyer has been involved with arbitration, litigation and negotiation. However, with the greatly increased number of causes of action established by the courts, and the increasing number of lawsuits by employees against their employers, there is a heightened realization that ADR procedures should be utilized to an even greater extent in the labor arena. Since much of labor law is geared to quick resolution, many labor lawyers are frustrated with the current trend to litigate in court, with its attendant problems for all concerned---long delays, uncertain and developing legal theories, unfavorable publicity, discovery hassles and high costs.

The Trend to Increased Employee Rights

Over the past several years, certain trends can be readily identified in the employment context. The courts have carved out major exceptions to an employer's right to dismiss an employee with or without cause. These exceptions have given rise to an increasing number of lawsuits by employees against their employers, most of them claiming that the terminations were unlawful. Against this increase in litigation, the percentage of privately employed workers covered by collective bargaining agreements has diminished, thus reducing the role of unions in the marketplace. Furthermore, Congress and state legislatures

have enacted numerous employment laws restricting an employer's ability to deal directly with employees and regulating the workplace. Finally, in light of all of these developments, there has been a growing concern on the part of employers to meet these new and higher standards in dealing fairly with their employees

Given the new complexities in the employment relationship, resolution of controversies using an ADR procedure can greatly reduce many of the problems attendant with litigation. ADR procedures can be classified into several categories. Generally recognized procedures include negotiation,(fn1) mediation,(fn2) conciliation,(fn3) mini-trial(fn4) and arbitration.(fn5) Although labor lawyers use all of these procedures, this article focuses on mediation as a procedure in litigation and arbitration.

The Mediation Process

In a mediation, effective negotiation is critical. Good advocacy, skillful marshalling of important facts and effective presentation are all necessary for successful settlement. Mediation is a voluntary procedure where resolutions are reached by consent of the parties. In attempting to reach a consensus, the negotiations involve the actual parties and their attorneys. In reaching an agreement, it is the parties' own...