Representing employees who are involved in disputes with their employers while still employed raises special practical, tactical, procedural, ethical, and legal issues. Most of those issues complicate matters for the employee and the employee’s counsel, but some of them are beneficial. Some of those issues arise only in litigated disputes, but most of them arise in disputes generally, whether or not they are the subject of litigation.
Representing employees who are involved in disputes with their employers while still employed. Employment attorney Wayne N. Outten.
Mediation of employment disputes: A breakdown of benefits, considerations and the process by New York employment attorney Wayne N. Outten.
An attorney representing employees—or employers—should consciously consider mediation in virtually every significant employment dispute that cannot be resolved through direct negotiations.
Familiar surveys have shown consistently that a very high percentage of civil lawsuits settle before judgment, typically more than 90%. And countless disputes settle before they ever mature into lawsuits. Therefore, it is highly likely that any particular dispute will settle at some point; the question usually is, when? Mediation presents the opportunity to ascertain whether such disputes can be settled earlier in the process than may otherwise be the case.
The success rate for mediation depends on numerous variables, such as the ability and techniques of the mediator and the manner in which the mediation was initiated. Empirical evidence suggests that the success rate is much higher when the parties initiate and pay for the mediation, as compared to when the parties are pressured into forum- annexed mediation by a judge or someone else. Reports indicate that court-annexed and agency-annexed mediation programs have success rates in the 50%-60% range, whereas private mediations succeed 80%-90% of the time. (For these purposes, “success” is defined as a settlement satisfactory to the parties.) Sometimes, even when a mediation session fails to result in a settlement at that time, the session may lay the groundwork for a subsequent settlement.
The opportunities are legion for problems and disputes to arise out of the employment relationship – during and after the period of employment, and involving non-legal as well as legal issues. Counsel for employees should, of course, be familiar with the legal issues that may arise and with the traditional legal procedures for addressing such legal issues. But familiarity with such legal matters is not enough. Counsel for employees should also be familiar with tactics, strategies, and methods for solving legal and non-legal problems and resolving disputes that do not necessarily depend on the assertion of legal rights and that do not necessarily employ formal legal procedures. This paper addresses negotiation approaches and dispute resolution procedures that are well-suited for dealing with the problems and disputes often encountered by employees and their counsel.
Negotiating ADR Agreements: An Employees' Lawyer's Perspective
Wayne N. Outten, chapter in How ADR Works, BNA Books, 2002
Negotiating Settlement Agreements: An Employees' Lawyer's Perspective
Wayne N. Outten, chapter in How ADR Works, BNA Books, 2002. This section of the chapter addresses negotiating and drafting settlement agreements for employment disputes. Settlements may come from direct negotiations between the parties (or their respective counsel), from mediation, or from negotiations before or during arbitration proceedings. In all of these contexts, many substantive issues, and thus many negotiation and drafting issues will be similar. When the context presents special issues, they will be specifically addressed.