WARD & GLASS, LLPUTILIZING ALTERNATIVE DISPUTE TACTIC IN

EMPLOYMENT MATTERSWOODROW K. GLASS

INTRODUCTION

• WHEN TO USE ADR IN LIEU OF LITIGATION• INTERNAL VS. EXTERNAL ADR POLICIES• MEDIATION, CONCILIATION AND ARBITRATIONS• DRAFTING & NEGOTIATING THE SETTLEMENT AGREEMENT

WHEN TO UTILIZE ADR IN LIEU OF LITIGATION

• A. LITIGATION PATHWAY• B. ALTERNATIVES TO LITIGATION

• NEGOTIATIONS• CONCILIATIONS• MEDIATION• ARBITRATION

• C. BENEFITS OF RESOLUTION

ALTERNATIVES TO LITIGATION

• NEGOTIATIONS• MEDIATION • ARBITRATION

SETTLE – SETTLE – SETTLE

SETTLEMENT BENEFITS

• PRESERVES CONFIDENTIALITY• COST SAVINGS• PRECEDENT• TIME SAVINGS

INTERNAL VS. EXTERNAL ADR POLICIES

• GOAL OF ANY ALTERNATIVE DISPUTE RESOLUTION• INTERNAL POLICIES

• PERCEPTION TO THE EMPLOYEE• POLICY IMPLICATIONS• EVERYONE MUST AGREE

• EXTERNAL POLICIES• PERCEPTION TO THE EMPLOYEE• COSTS• FORMALITY • SIMILAR TO LITIGATION

MEDIATION – CONCILIATION - ARBITRATION

• MEDIATION• VOLUNTARY• SECTION OF MEDIATOR• ROLE OF MEDIATOR

MEDIATION – CONCILIATION - ARBITRATION

• CONCILIATIONS• VOLUNTARY• INFORMAL AND VOLUNTARY• GOOD ALTERNATIVE IF AN ON-GOING RELATIONSHIP IS THE GOAL

MEDIATION – CONCILIATION - ARBITRATION

• ARBITRATIONS• NOT VOLUNTARY• RELATIVELY FORMAL • ROLE OF ARBITRATOR• DECISION OF ARBITRATOR

SETTLEMENTS & VERDICTS - GOOD DECISION?

• RESULTS OF THE CASES SIMILAR TO MY POTENTIAL CASE

RESOURCES TO GUIDE DECISION MAKING

WESTLAW

THE BOAZ REPORT

OTHER SOURCES FOR INFORMATION - SETTLEMENT

• SOMETIMES THE BEST INFORMATION IS FREE• A PHONE CALL TO A COLLEAGUE• HOW DOES THE JUDGE REACT TO YOU CASE IN THEIR JURISDICTION• ARE THE JURIES CONSERVATIVE OR OPEN MINDED

DRAFTING & NEGOTIATION THE SETTLEMENT

• NO JOB IS FINISHED UNTIL THE PAPER WORK IS DONE

PAPERWORK

DRAFTING AND NEGOTIATING THE SETTLEMENT

• PURPOSE OF THE SETTLEMENT AGREEMENT• FORMALIZES IN WRITING THE AGREEMENT REACHED BETWEEN THE PARTIES

• WHEN DO YOU START THE SETTLEMENT AGREEMENT• START BEFORE YOU FINISH• IMPORTANCE OF DISCUSSING ALL ASPECTS TO INCLUDE IN THE AGREEMENT

DRAFTING AND NEGOTIATION THE SETTLEMENT

• CONFIDENTIALITY OF THE SETTLEMENT NEGOTIATION PROCESS• TYPICAL TOPICS TO INCLUDE

• DESCRIPTION OF THE DISPUTE• FULL AND COMPLETE SETTLEMENT OF ALL CLAIMS• CONSIDERATION• ESSENTIAL TERMS• EFFECT OF SUBSEQUENT EVENTS• ADDITIONAL OBLIGATIONS• RETENTION OF JURISDICTION• REMEDY PROVISIONS

DRAFTING AND NEGOTIATION THE SETTLEMENT

• ADDITIONAL CRUCIAL TERMS• PAYMENT OF MONEY• DISMISSAL AND RELEASE OF CLAIMS• DISMISSAL OF ANY PENDING ACTION

LAWYER STUFF

BINDING EFFECT AND ENFORCEMENT

• FORMATION OF A BINDING CONTRACT• GENERAL CONTRACT LAW GOVERNS• DURESS• VOLUNTARY• ENFORCEMENT THROUGH JUDICIAL PROCESS