Negotiation, Mediation & Litigation of Employment Disputes
Negotiation is where the parties formally or informally negotiate with each other with the goal of coming to an agreement themselves. This means that if they come to an agreement and sign it, that neither party continues on to litigation.
Litigation, by contrast, is where instead of negotiating with one another the parties argue before an arbitrator or judge. The lawyers present their cases, witnesses are called, the law is cited, and the arbitrator/judge delivers a judgement.
Negotiation vs Litigation
A successful negotiation gives people three primary benefits:
- Takes less time
- Costs less money
- Certainty/The result is guaranteed
Since once a negotiation is successfully concluded you don’t need to try a case and the result cannot be appealed this shortens the amount of time enormously. Cases can take years before they appear before an arbitrator or judge. Then you have to wait for the judgement. After the judgement, there may be an appeal. Litigation is a very lengthy process. By contrast, successful negotiations are much faster. Negotiations end when either the parties come to an agreement or they don’t. Once an agreement has been reached, both parties must simply abide by what they’ve agreed to. Accordingly, since there is no appeal, any severance pay that is agreed to is paid out much faster.
Less time means less money spent out-of-pocket. Successful negotiations often (though not always) means no money spent on: experts, stenographers, translators, court costs, etc…
Most importantly, a successful negotiation means there is a guaranteed satisfactory result. Also, since the parties must agree, a successful negotiation automatically means a satisfactory result. A successful negotiation means that the situation resolves itself pretty quickly afterwards, whether that’s severance pay, a resolved workplace dispute, or any other issue. It will not hang in limbo for years on end. This is why negotiation is such a worthwhile and pragmatic route.
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So why are negotiations often overlooked as a strategy or course of action? The simple truth is: even most lawyers don’t realize how pragmatic and useful negotiations really are. How strategic and calculating they are. Negotiation is a balancing act of preserving our client’s rights while trying to get a good result for our client. It takes skill, expertise, and extensive knowledge of employment law.
Unfortunately, not all negotiations are successful. Sometimes the other side is unwilling to come to a reasonable compromise. Sometimes there is a principle at stake. Sometimes both parties simply can’t agree. That is where litigation comes into play.
Many people have expectations about what arbitration/court is like but there is a big difference between media portrayal and reality. Litigation is not filled with ‘gotcha’ moments and obscurations of the facts. Instead, litigation is the careful application of strategy and law to the facts at hand in order to prepare the best case possible.
The key to litigation is: understanding how the arbitrator/judge will approach the facts of the case in order to come to a conclusion. This understanding allows our lawyers to better frame the issues and present our clients’ case, bettering our clients’ chances of a successful result.
There is an inherent risk to litigation. The result is never guaranteed. The best case is still subject to a human arbitrator/judge who may rule against you for any number of reasons.
Judgements are often appealed (although there is a much narrower scope for judicial revision in arbitrations than in court). It is important to remember going in that there is no guaranteed result.
Mediations vs Arbitrations
Mediation/Conciliation is a negotiation session before a mediator/conciliator. This person facilitates negotiations by trying to get both sides to make compromises in order to come to an agreement. However, a mediation/conciliation session is non-binding. This means that neither side has to accept the mediator’s opinions or suggestions. The mediator has no power to decide. An arbitrator or judge is a decider of fact and an applier of law. A mediator is not. A mediator is simply a facilitator for compromise. Agreements must be mutually undertaken and agreed to by all parties in order to be binding. Additionally, negotiations can and do take place outside of mediation sessions with no involvement from the mediator whatsoever. Negotiations extend far beyond the boundaries of mediation sessions.
By contrast, arbitration is like a court in a different setting. The arbitrator/judge hears arguments from the lawyers, hears from relevant witnesses and experts, and ultimately delivers a judgement. This judgement is binding regardless of whether the parties are satisfied or not. That means that judgment can be enforced on an unwilling party.