In-House Alternative Dispute Resolution: Hidden Power Imbalances

According to theUnited States Department of Labor in house alternative dispute resolution can be effective but is not without its pitfalls.

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There are many ways to pursue employment litigation in California and it is important that employees know that alternative dispute resolution can be an imbalanced way to settle a dispute. Particularly if the dispute resolution takes place in house.

Dispute resolution experts frequently stress the importance of having multiple avenues available for handling problems in the workplace.

Options within the workplace for resolving problems may include: formal procedures for issuing a decision, peer review, fact-finding, mediation, counseling and assistance by a trained facilitator, and direct negotiation among the disputants.

The reason multiple options are needed is to cater to different employees and circumstances. An employee may prefer a more informal process and some situations may be better handled through the use of a less formal dispute resolution process.

One major concern for all forms of alternative dispute resolution is that in-house dispute resolution techniques are by their nature run by the employer. This is sometimes acceptable but there is also plenty of potential for a conflict of interest in these sorts of circumstances.

Employee advocates feel strongly that employee representatives are required and should be informed. This is because some believe no matter how involved an employee is there is no way to overcome the inherent power imbalances in an employment relationship if the employee is not provided with third-party representation.

This representation can take many forms such as a union or other organization that is not under the control of the employer’s management.

Experts are concerned with the power imbalances and potential for abuse created in alternative dispute resolution situations.

Obviously an internal process of dispute resolution is controlled by the employer themselves.

A good alternative to in house dispute resolution services is the use of third party private dispute resolution services for the informal resolution of employment disputes.

The Law Reform report entitled: Alternative Dispute Resolution: Mediation and Conciliation reports that alternative dispute resolution can also create a financial strain with no result.

Often an alternative form of dispute resolution does lead to a successful conclusion. This means the process may have acted as an additional layer to the civil litigation could happen next.

A primary advantage of alternative dispute resolution is that it may provide a way for a relationship to continue since problems are supposed to be resolved in a manner that amicable to both sides.

However, this advantage of alternative dispute resolution is lessened when parties have no desire to continue their relationship after the issue between them has been resolved.

Commentators on the subject have noted that a power imbalance is created from the start of the alternative dispute resolution process when a legislator has chosen a dispute resolution approach where one party unilaterally has the power force the other party to participate in the process against their will.

Costa Mesa employment lawsuits can be filed with the help of the Nassiri Law Group, practicing in Orange County, Riverside and Los Angeles. Call 714-937-2020.

Additional Resources:

The New Lawsuit Ecosystem, Trends, Targets and Players, October 2013, Institute for Legal Reform

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