The rising trend of alternative dispute resolution was a focus of the New Jersey State Bar Association Annual Meeting and Convention in Atlantic City, NJ.
Arbitrator and mediator Robert E. Margulies, in a May 18 session, observed, “The culture has changed.” Noting that the United States is viewed as having an advanced alternative dispute resolution culture, Margulies added, “The world is trying to get [there], and it will get there.”
This rise in ADR advocacy is especially true for the labor and employment markets as a growing number of cases are resolved through arbitration and mediation. From neutral selection and relevant cultural considerations, to attorney conduct and client management, labor and employment practitioners have much to consider in terms of ADR proceedings.
First and Foremost: Neutral Selection
Margulies addressed the importance of choosing the right neutral for the arbitration or mediation. “It is your process,” he noted, urging parties to speak with the neutral ahead of time as each neutral has a different dispute adjudication style.
According to Margulies, this is particularly applicable to the employment context, and employment lawyers should consider the level of experience a neutral possesses within the particular field. Attorney and mediator Felicia Farber also emphasized the importance of having “a highly skilled neutral”—an expert in the field. “You need someone that speaks the language,” Margulies continued, and not simply someone who has adjudicated a dispute many times before.
Challenges to neutral selection are not too unusual in arbitration. A review of data provided by Bloomberg BNA's Arbitration Award Navigator shows that of the 65 labor arbitration awards involving the selection of arbitrators, the employer prevailed in 52.4% of cases, the union prevailed in 33.8% of cases, individuals prevailed in 1.5% of cases, and 12.3% of cases involved mixed prevailing parties.
In addition to following the applicable collective-bargaining agreement, the best an attorney can do in selecting a neutral, according to arbitrator and mediator Erika Sondahl Levin, is to select someone “agile”—someone who can pick up on verbal and nonverbal cues.
This characteristic is key, Levin stated, as a neutral who cannot properly identify “the cultural component in the mix” will have a difficult time resolving the issues appropriately. “The whole idea here is cultural consciousness,” she concluded, noting that everyone comes from culturally diverse backgrounds and this can play a part in dispute adjudication.
Cultural Consciousness Considerations
Discussing the impact of cultural elements on dispute resolution, Levin distinguished between low context cultures and high context cultures. The United States, for example, is considered a low context culture, while Asia and the Middle East fall into the latter group. For low context cultures, communication is direct and a great emphasis is placed on individualism.
With regard to the legal landscape, relationships are viewed as transitory. Low context cultures tend to treat the agreement as gold, conforming to the four corners of the contract. Oftentimes, the goal for low context cultured parties in dispute adjudication is to reach an agreement that ends the legal dispute to the mutual satisfaction of the parties.
Alternatively, high context cultures value collectivism over individualism, and view relationships as permanent. “We have a relationship” often takes precedence over the presiding contract. Accordingly, the goal for these parties is to restore harmony in the relationship.
Keeping these differences in mind—either as the neutral adjudicating the dispute, or as the attorney selecting the neutral—will lead to better results, Levin asserted. “This is a different process. People actually listen when you change the language,” Margulies added.
Attorney’s Role in Dispute Resolution
In addition to selecting the right neutral, the Honorable Barbara Byrd Wecker, J.S.C. (Ret.) addressed the role of attorneys in alternative dispute resolution, stating that preparation is key, as the attorney is assigned with introducing the client and case to the neutral.
Additionally, she stated, since clients do not always understand the difference between arbitration and mediation, the attorney must also ensure that the client understands the process within which the dispute will proceed. “Manage the [client’s] expectations” for success, Wecker continued, as “your client should have an educated sense” of the case.
Farber also highlighted the importance of communication between the attorney and client, suggesting that an attorney involved in an arbitration or mediation proceeding should take the time to learn what’s important to the other side and explain same to the client. This information is crucial to the case as it can assist the attorney in managing expectations, she added.
The attorney and client are encouraged to develop an understanding of the needs and goals of the other side. Attorneys have a tendency to become aligned with the client, Farber cautioned, which can result in fact distortion and a devaluing of the opposing side’s case. To avoid this, Farber advised against looking too narrowly at an issue. Instead, consider what’s really affecting the issue.
Future of Arbitration and Mediation
Despite the ADR “guarantee”—that someone is always going to lose—Margulies noted that he has never been to a proceeding where the parties haven’t been advantaged.
According to Levin, one major advantage for clients with regard to arbitration and mediation is cost. “The business of law is changing” and “clients have budgets.” The benefit of alternative dispute resolution, Levin added, is “you’ll get there if you want to get there.”
To better understand the current state of labor arbitration, and to access additional data about trending issues, industries, arbitrators, administering agencies, employers, unions, and more, visit Bloomberg BNA's Arbitration Award Navigator and request a free trial to get started.
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