Mass arbitration is a relatively newer concept. Thousands of plaintiffs, generally employees, consumers, or independent contractors, choose mass arbitration if they have complaints against a company. The employee agreement contains an arbitration clause that most people tend to overlook. In a majority of the contracts, you will find a dispute resolution clause.
However, this clause is powerful enough to be a time bomb. This clause has full control over the forum that is either a state or federal court. It could also be an arbitration association such as the JAMS or the American Arbitration Association. The forum will be useful in cases litigation arises in connection to the agreement. The following points will discuss how mass arbitration affects employment agreements.
An Ounce of Prevention
The HR executives of a company are well aware of the most effective strategy. But they can use in any form of litigation is nothing but preventative medicine. Prevention is about two basic principles – document and communicate.
If the employer decides to terminate an employee, much to their surprise and without their knowledge, the probability of future litigation taking place increases. That is not good, both for the employer and the employer. Employees should know their position. They should know which areas their performance is up to the mark and which they lag in.
It is important to evaluate and document the performance of every employee. The evaluations should have the acknowledgment of the employees. If an employer maintains consistency regarding documentation and systematically communicates every issue to the employee, the probability of both mass arbitrations and one-off litigations would drastically decrease. Not just in terms of arbitration, it is also the right thing to do. Also, it is important to consider the forum for arbitration.
The COVID-19 pandemic changed the way we live. Every aspect of our life is changing. And one of which is the use of technology in connection to dispute resolution. For example, using Zoom during the hearings, sending emails to submit documents and evidence, using Dropbox to store documents, etc.
However, not a single of these technologies has a smooth integration to enable continuous workflow. Nor are these tools built keeping in mind the purpose of conducting legal proceedings.
If your dispute resolution provider can’t save time, energy, and money by using technology, it’s time you need a new dispute resolution provider. Using technologies that can help in efficient litigation would be helpful. There isn’t an inch of doubt that video platforms have been highly useful at the time of the pandemic.
That doesn’t imply that a dispute resolution provider has made technological advancements. The providers should be pioneers in bringing up new and inventive methods to increase the use of technology during litigation. Mass arbitrations also can’t be conducted effectively without proper technology adoption.
Mediation can prove to be a much effective and amicable process if used in the right way and at the right time. In the present scenario, mediation is usually the last option when all the other procedures have been tried and tested but in vain. Mediation is useful when the conflicting parties don’t agree, and a settlement seems to be out of the equation.
Considered an outcome of the litigation process, mediation can distract from the litigation process. Implementation of mediation should be strategic and take place in stages. The conflicting parties find it hard to come to a settlement. Owing to the introduction of technology, mediation can be a necessary step at different stages in litigation. Not only is it easier, but it can also be cost-effective.
Cost-sharing is the central factor when it comes to the fairness of arbitration provisions. If a company opts for the dispute resolution forum, will it be fair for them to shift every penny of the case fees to the employees? Probably not.
Both parties should have equal contributions. Companies can do their bit by handling a part of the financial burden instead of asking their employees to pay for everything. This approach can ensure that a party would think properly before filing a facetious claim.
Companies that are not in favor of being pushed back to the sphere of litigation can now breathe easily. Arbitration today is an effective alternative in this age of mass arbitration.