Employment Mediation & Arbitration

Employment disputes are sometimes resolved through litigation, but often an employee will need to address the issue through alternative dispute resolution (ADR). Mediation and arbitration are the most common ADR processes. Knowledgeable arbitration and mediation attorney Steve A. Buchwalter represents workers from L.A., Ventura County, and beyond in disputes with their employers. With more than 20 years of experience, he has helped many clients advance their interests in various ADR proceedings.

If a dispute arises between an employee and his or her current or former employer, the parties may litigate the issue in court or seek an alternative method for resolving a claim. The parties can agree to ADR once a lawsuit is filed, or an employment agreement or union contract may require that they resolve a dispute through mediation, arbitration, or a combination of both.

Many workplace disputes stem from discrimination and wrongful termination claims. Both state and federal laws prohibit an employer from making employment decisions, such as hiring, promotion, and termination, based on certain protected traits. Title VII of the Civil Rights Act prohibits workplace discrimination on the basis of race, gender, and religion, while California’s Fair Employment and Housing Act (FEHA) also bars discrimination based onsexual orientation, pregnancy, and disability, among other characteristics. Various state and federal laws also prevent an employerfrom taking retaliatory action, such as termination or demotion, against an employee who files a discrimination claim or reports corporate fraud or other wrongdoing.

Many employers require that employees agree to mediation or arbitration as a condition of their employment. An employment contract, for instance, may include a mandatory mediation or arbitration provision. Statutes and case law generally endorse employment contracts with these provisions. In some cases, an agreement will contemplate a multi-tiered approach to resolving employment disputes. The process may include first seeking a resolution internally, followed by mediation, and mandatory arbitration if necessary.

If an employer and employee are unable to resolve an issue internally, they may seek a resolution through mediation. This is a non-judicial proceeding in which a mediator tries to facilitate a voluntary settlement or resolution between the parties. The mediator is not a judge, so he or she cannot order a settlement between the employer and employee. Instead, the mediator acts as a go-between and tries to communicate each party’s concerns and settlement offers to the other in an effort to help the parties reach their own resolution. If the employer and employee are unable to reach a resolution voluntarily, they may move forward in court. If there is an employment agreement, the terms may require that the parties arbitrate before, or instead of, litigating the matter in court.

Unlike a mediator, an arbitrator does have the power to bind the parties to a resolution. The arbitrator generally has more experience handling employment disputes. He or she will oversee and govern the arbitration process, which is often less complex and formal than litigation.

Courts have generally enforced arbitration provisions because this process is more cost-effective and expeditious than taking a case to trial. However, an arbitration agreement cannot curtail an employee’s statutorily protected right to litigate a claim. For a mandatory arbitration agreement to be fair in a claim asserted under FEHA, for example, the process must:

• Have a neutral arbitrator;
• Offer more than minimal discovery;
• Provide the range of remedies available under the law;
• Include a written decision; and
• Require that the employer pay for any costs that are unique to arbitration.

In other words, arbitration may change the forum in which a dispute is resolved, but it cannot change or reduce an employee’s substantive rights.

Steve A. Buchwalter is a mediation and arbitration lawyer who can represent the rights and interests of workers in Los Angeles County and the surrounding areas. He has counseled many individuals involved in employment disputes and has received the largest individual employment arbitration award in California history with an award in favor of his client for approximately 4 billion dollars. Mr. Buchwalter can discuss the rights that you have under California and federal law, and he can effectively guide you through mediation, arbitration, or trial if necessary. His clients have come from throughout Southern California, such as from Irvine and Santa Barbara. Call us at (818) 501-8987 or use our online form to schedule a consultation today.