Employment law is one of the fastest developing areas of law today. Claims involving allegations of harassment and discrimination have changed the practices of most companies and their policies regarding employee relations. The cost, publicity, delay and disruption that result from litigation have sharply increased the use of alternative methods for identifying and resolving potentially harmful disputes.
Many disputes in the workplace can be resolved in their early stages by companies designing and implementing employee dispute resolution programs. Such programs typically establish sequential processes progressing from non-binding to binding steps.
FICM is dedicated to ensuring that both our administrative and professional practices are sensitive to all parties’ needs, and meet fairness standards established under applicable law. To that end, any employment matter referred to FICM as a result of a mandatory pre-dispute clause must first be reviewed by our employment experts before administration begins to ensure compliance with FICM Minimum Standards of Procedural Fairness. If an arbitration clause or procedure does not comply, FICM will notify the employer that the arbitration demand will not be accepted unless there is full compliance with FICM’ Minimum Standards.
FICM Policy on Employment Arbitration
Minimum Standards of Procedural Fairness.
What to Consider When Drafting an Employment Dispute Resolution Program
The outline below is provided as a basic guide for companies considering an employment dispute resolution program. At the end of the outline are two sample clauses. This information is not comprehensive and should not be construed as legal advice or a legal opinion regarding the use of alternative dispute resolution in a particular employment dispute or program. We recommend that you consult experienced counsel for advice.
Step One: INTERNAL MECHANISMS
Consider the internal mechanisms for resolving conflict in the workplace that are consistent with your company’s culture, resources and needs. Such mechanisms may include:
- Corporate Ombudsperson
- Peer Review Board made up of fellow employees, facilitated by neutral management, HR person or other professional
- Employee Hotline
- Open Door Policy
- Progressive Management Review at successive levels within the organization until the problem is resolved
Properly communicated and administered, internal mechanisms can be very effective in resolving disputes at an early stage.
Step Two: EXTERNAL MECHANISMS
Consider the external mechanisms for resolving conflict in the workplace that are consistent with your company. Those may include:
- External Ombudsperson: A process in which a trained mediator who is neither a retired judge nor a lawyer facilitates communication between employee and management or HR representative.
- Neutral Fact Finding:An independent investigation conducted by a neutral, outside resource who can provide a written report of findings which may include recommendations regarding the situation under investigation.
- Mediation:A confidential process in which the parties are assisted by a neutral mediator who helps them to negotiate resolution of their dispute. Mediation is a non-binding procedure. However, once an agreement has been reached and documented, it is binding on the parties and can be enforced.
- Early Neutral Evaluation (ENE): A process in which both parties present the facts of their case to a neutral for a non-binding written evaluation and recommendation.
- Arbitration*:A process in which a neutral third party arbitrator hears parties’ arguments and issues a written award which can be entered as an enforceable judgment.
FICM encourages the use of mediation and of voluntary arbitration that is not a condition of initial or continued employment. FICM does not take a position on the enforceability of condition-of-employment arbitration clauses. If courts rule definitively that such clauses are unenforceable, or if laws or regulations proscribe their use, FICM will comply with the rulings or laws in the applicable cases or jurisdiction. Absent such proscriptions, FICM accepts arbitration assignments based on condition-of-employment clauses provided the Minimum Standards are met, but does not encourage the use of such clauses.
Step Three: DESIGN
- Consider who should be involved in the design, implementation and communication of the program to ensure success and appropriate use of the program: Employees, Management, Human Resource Professionals, General Counsel, outside counsel, outside neutral consultants, etc.
- Consider who will finalize and approve the program (e.g., Senior Management, CEO, COO, CFO, General Counsel, Committee of all including employees, etc.)
- Consider which employees should be covered by the program and whether the program should be mandatory or voluntary.
- Consider which disputes should be included or excluded at any internal or external step of the program. Define the timeline between all internal and external steps of the program.
- Consider whether a Pilot Program should be used to test the program. If so, determine:
Duration of Pilot
Location of Pilot
How results will be evaluated
Step Four: IMPLEMENTATION
- Decide on an institutional dispute resolution services provider (e.g., FICM) for the external steps to the dispute resolution program. Many companies name more than one provider and allow the employee to choose the institution at the time the external step is necessary. If arbitration is to be included in the program, it is recommended that the company specify which arbitration rules and procedures will apply. Naming the institutional service provider ensures that the external steps are self-executing.
- Notify the institutional provider so they may streamline program administration.
- Once the program is finalized, determine the date the program will go into effect and how the program will be tracked and administered for both the internal and external steps. Consider how the fees for the external steps should be allocated between employee and employer and explain this in the program description. (See FICM Minimum Standards of Procedural Fairness.)
- Consider the procedures by which the program will be communicated to the employees (memorandum, employee handbook, initial job application, etc.) and the ways in which employees shall convey their consent. The program should be fully described and the procedures for accessing the program should be clearly articulated in a step-by-step guide to both employees and management including forms, phone numbers and who to contact with questions, etc. Consider including Evaluation Forms at each internal and external step so that the effectiveness of the program and the individual steps can be monitored and modified, if necessary. In addition, some jurisdictions may require the employer to provide the employee with a copy of the applicable arbitration rules. If applicable, consider how to comply with such requirements.
- Conflict management training and an overview of all ADR processes should be considered for all levels of management.
Sample Clauses for Use in Employment Dispute Resolution Programs and Contracts
The following are basic sample clauses providing for mediation or arbitration in an employment contract. A variety of issues may affect the enforceability or effectiveness of these sample clauses, therefore it is recommended that you review applicable law in your jurisdiction and consult experienced counsel for advice. The information contained herein should not be considered legal advice or legal opinion. For information about naming FICM in your program or setting a case, call your local FICM office.
Sample clause for mediation only:
Any controversy, dispute or claim arising out of or relating to this [contract] or breach thereof shall first be settled through good faith negotiation [OR company employment program] [other]. If the dispute cannot be settled through negotiation [OR company employment program] [other], the parties agree to attempt in good faith to settle the dispute by mediation administered by FICM.
Sample clause for mediation and arbitration:
Any controversy, dispute or claim arising out of or relating to this [contract] or breach thereof shall first be settled through good faith negotiation [OR company employment program] [other]. If the dispute cannot be settled through negotiation [OR company employment program] [other], the parties agree to attempt in good faith to settle the dispute by mediation administered by FICM. If the parties are unsuccessful at resolving the dispute through mediation, the parties agree to arbitration administered by FICM pursuant to its Employment Arbitration Rules & Procedures and subject to FICM Policy on Employment Arbitration Minimum Standards of Procedural Fairness. Judgment on the Award may be entered in any court having jurisdiction.
Optional Additional Provisions For Employment Clauses
- Define Process for Mediator Selection
- Mediator Qualifications
- Define Timeline by which parties must agree to a Mediator
- Define default mechanism and timeline by which
- Mediator will be appointed if parties cannot agree
- Location of Mediation
- Written Submission of Briefs or Position Statements
- Define Process for Arbitrator Selection
- Number of Arbitrators
- Party-Appointed Arbitrators
- Arbitrator Qualifications
- Binding/Non-binding or Split (Binding on the company, non-binding on the employee)
- Location of Arbitration Proceeding
- Fee Allocation