You’re here because you have an employment contract that mandates arbitration of workplace disputes. You probably have several questions. Although we currently limit our arbitration services to matters before FINRA, the Financial Industry Regulatory Authority, we will try to help you understand the process and guide you to the next step on your conflict resolution journey.
What Is Arbitration?
Arbitration is a dispute resolution process that works a lot like going to court, but it is a private process. You get to choose the arbitrator or a panel of arbitrators, and you pay them for their services. The arbitrator(s) will review the evidence, including testimony, and decide how you and your employer will resolve the complaint, based on what they believe happened. For example, your employer might be directed to pay you money or reinstate your employment, if the arbitrator(s) believe you were discriminated against. If they believe your employer treated you fairly, you might receive nothing. Fortunately, most employers pay your share of the arbitration process, except for your attorney’s fees.
How Does Arbitration Differ from Litigation?
The primary difference between arbitration and litigation is the privacy. Your case will not be part of the public record like it is when it goes to court. Also, since the process is private, you get to select the arbitrator(s) who make the decisions about what happened and what would fairly compensation you, if anything.
Arbitrators have more control over their dockets than judges, so your case will often be heard sooner than if you go to court. If you wait for a trial, it could take years.
How Does Arbitration Differ from Mediation?
Mediation is also a private process that allows you to select the neutral third party to help you, but the mediator’s role is very different from an arbitrator’s role. The mediator will not make any decisions for you. There will be no determination of facts or blame. Instead, the mediator will help you and your employer identify the root causes of the dispute, what you both need to happen, and how to get the results you want. Ideally, you will reach an agreement settling the case. If not, nothing you discuss during the mediation can be evidence in arbitration or at trial. So, you are free to explore possible resolutions without adverse consequences.
The Arbitration Clause Might Not Be Enforceable
New York employers cannot mandate arbitration of sexual harassment claims. Employees have the option to arbitrate, but they can also opt out and pursue mediation or litigation.
Starting the Arbitration Process
Once you’ve confirmed that the arbitration clause in your employee contract is valid, you will follow the process of the arbitration provider named in the contract and in the state your employer has selected. The most common providers are:
- American Arbitration Association (AAA)
- Judicial Arbitration and Mediation Services, Inc. (JAMS)
Do You Need a Lawyer for Arbitration?
Probably. As in litigation, the procedural rules can be very specific, and missing a deadline or failing to follow a rule can be costly. Arbitrators might allow you to correct your errors, especially since your employer will probably have legal counsel. But it’s usually better to have things done right the first time. There will also be nuances in the statutes and case law governing your case. An attorney experienced in your type of case will be better-suited than you to identify those nuances and work with or around them.
Where Can You Find a Lawyer?
We don’t currently represent parties in employment arbitration because our founder, Nance L. Schick, is a neutral arbitrator for FINRA. If you are an employer, you might have insurance coverage that provides legal counsel. Check your insurance policy for a “Duty to Defend” clause.
We typically refer parties to the below attorneys:
There might also be free or low-cost services available to some parties through: