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Alternative Dispute Resolution (ADR) provides a forum for creative solutions to disputes that better meet the needs of parties in dispute. A neutral party helps settle the dispute and helps the parties reach an agreement without going through litigation.
Parties involved in a dispute, such as an employer and employee, may work towards a voluntary, consensual agreement, as opposed to having a judge or other authority decide the case.
With one exception (binding arbitration) the goal of ADR is to provide a forum for the parties of a dispute themselves to work towards a voluntary, consensual agreement, as opposed to having a judge or other authority decide the case.
In addition to serving as a potential means of avoiding the expense, delay, and uncertainty associated with traditional litigation, ADR also is intended as a vehicle for improving communication between the parties.
Employer-mandated arbitration. When alloed by state law, employers may require employees to agree to resolve all or certain types of employment disputes through arbitration rather than litigation. If properly crafted, such agreements are enforceable in many situations. Drafting enforceable agreements requires some knowledge of the judicial decisions in your region, so you should consult a knowledgeable attorney. Key issues involve the mutuality of the obligation to arbitrate and the reasonableness of any restrictions as to damages, time limitations, and procedures. Such an agreement will not preclude an agency such as the EEOC from bringing an action on its own initiative.
Department of Labor view of ADR. The Department of Labor has experimented with ADR in a number of areas. DOL has published regulations that provide for alternative “settlement judge” proceedings before the Office of Administrative Law Judges. The EEOC is using mediation pilot programs to increase voluntary resolutions.
The vast majority of disputes in which DOL is a party cover allegations of labor standards violations (principally OSHA, Wage-Hour, Office of Federal Contract Compliance Programs, and MSHA). Historically, many cases are settled without going to a court or ALJ—either by administrative settlement with the program agency or through subsequent negotiations with the solicitor’s office. However, many of these cases take years to resolve (during which time the violation may be continuing) and require resources (follow-up investigations, discovery, depositions) that otherwise could be spent on cases that can only be resolved by a court.
In 1992, DOL conducted a pilot test in the Philadelphia Region to determine whether the use of in-house mediators, could speed up the resolution of these cases.
Of 27 cases mediated in the pilot, 22 (81%) were settled, and most were resolved in a single mediation session. The various DOL participants independently concluded that the settlements were at least as good as the likely outcomes of litigation. Some cases were very complex and would have cost DOL and the outside party substantial resources and time to bring to trial. Because of the mix of suitable cases available in the brief duration of the pilot, however, the cases mediated could not represent the full range of DOL programs: One MSHA case was mediated, and the remainder was evenly divided between OSHA and Wage-Hour.
The ADR Act of 1990. In November 1990, Congress passed legislation that authorizes and encourages federal agencies to use alternative dispute resolution techniques to reduce the growth of litigation. In enacting the Administrative Dispute Resolution Act, the Congress expressed concern that traditional forms of proceedings used to resolve disputes between agencies and members of the public have become too formal and lengthy, and asserted that ADR may be, in at least some instances, faster, less contentious, and more economical.
The ADR Act requires federal agencies to appoint a dispute resolution specialist to work with ACUS and the Federal Mediation and Conciliation Service (FMCS) in considering whether, and under what circumstances, ADR techniques may benefit the public and help the agency to fulfill its statutory duties more effectively. Specifically, each agency must develop an ADR policy following an examination of possible uses of ADR in formal and informal adjudication, rulemakings, enforcement actions, the issuance and revocation of licenses or permits, contract administration, litigation brought by or against the agency, and other agency actions.