Dallas Employment Lawyer Blog
Dallas Employment Trial Lawyer Harjeen Zibari
The legal system is complicated. There are many terms and lots of jargon that gets thrown around, and it can be overwhelming to parse through it all. There are three avenues that come up a bit in civil litigation, particularly in employment law. This blog will explain what litigation, arbitration, and mediation mean, how they’re different, and how they interact.
Litigation:
This is the general term for the process that goes into a lawsuit. In litigation, there’s a Plaintiff who brings a case against a Defendant. (At our firm, we only represent the worker Plaintiff, who brings a case against the employer Defendant). Litigation can occur in state or federal court or in arbitration (which I’ll discuss below).
Litigation typically starts with a complaint or petition (colloquially called a lawsuit) that is served on a Defendant. The parties then exchange discovery and conduct depositions, have hearings on various subjects, and ultimately go to trial or final hearing. Although this was described in the most simple of terms, this is a lengthy, adversarial process that often takes years and can be very costly. Things like filing fees, deposition fees, and travel costs all add up, even for a Plaintiff who is being charged a contingency fee.
There is also the cost that litigation can take on a person psychologically. It can be very tough to have your life on display, your complaint against a former employer become a public record, and to be questioned by the other side on just about everything that’s gone on in your life over the past few years. But, this is the primary way we seek justice in our legal system.
Embarking on a legal matter, however, does not always involve litigation. Oftentimes attorneys will attempt to seek resolution for a client outside of litigation, garnering a settlement before litigation is filed. Or the legal matter will require by statute that the Plaintiff exhaust administrative remedies first, like in employment law. Therefore, in these cases, matters can’t go straight to litigation—they first go through an administrative stage, like before the EEOC.
Arbitration:
Arbitration is a type of litigation that is becoming more and more common nowadays, particularly in employment law. Employers will commonly have their employees sign an arbitration agreement with onboarding paperwork, which has the employee agree that any legal action they bring against the company has to be done in arbitration. Oftentimes, fighting to keep a case out of arbitration can be the bulk of litigation in a matter. This is a hotly contested issue.
Arbitration is a private, confidential, and adversarial legal process that is overseen by a person called an arbitrator. The main organizations that offer arbitration are the American Arbitration Association (AAA) and JAMS. Arbitrators are often specialized attorneys or retired judges who have obtained the requisite certifications to become arbitrators.
In arbitration, rules of procedure can often be relaxed, but it’s up to the arbitrator. However, the process is not public, meaning the case records cannot be accessed and hearings cannot be attended by the public. For some, this is a positive. For others, especially those who want to reveal wrongdoing to the masses, this is a major negative.
There is no jury in arbitration, which can be another major negative. However, arbitration can be useful in highly complex cases that may be too lengthy or cumbersome for a jury to decide. An arbitrator’s decision in a case is binding, meaning it cannot be appealed. So, if you’re unhappy with the decision in arbitration, that’s that.
Mediation:
Mediation is a completely separate process altogether, and it’s intended to be non-adversarial in nature. A third-party neutral, called a mediator, brokers an agreement between the parties in a mediation session. Typically, the parties are in two separate rooms and the mediator goes between the two, discussing their stances and their settlement offers or demands. This is not a hearing, but more of a type of negotiation process. The mediator is not there to decide who is wrong and who is right, but to discover what common ground the parties have and how to get them to agree on a resolution.
Mediators are also typically former lawyers or judges, but they don’t have to be. Some mediators are also licensed arbitrators and vice versa. Mediators can work for private mediation companies or for the government. For example, the EEOC provides free mediation services that we often take advantage of in our work here at the firm for our clients.
A typical mediation lasts at least half of a workday, but ideally a full workday. For more complicated cases, a mediation can span several days. It can be in person, but more commonly now occurs virtually. It can also occur at any stage in a case—even before a lawsuit is filed. Sometimes, judges may order the parties to attend mediation before trying a case (where you’ll hear the term “court-ordered mediation.”)
Mediation is also a confidential process, and statements in mediation cannot later be used in court. Parties can also instruct the mediator not to share certain bits of information with the other side. This can allow parties to reach a resolution on their own terms, without worrying that it can hurt litigation later down the line.
At the end of a successful mediation, the parties will have mutually agreed on terms that they’ll memorialize in a settlement agreement. This is binding once signed, as that is a formal contract.
Conclusion:
There are many processes that exist within the civil legal sphere, and this blog just briefly touches on some of them. Here at Rob Wiley, we can confidently guide you through your case as we have extensive experience with all the things discussed here. Do you want to pursue a case against your employer? Contact me in Dallas or one of my talented colleagues in Houston or Austin today.