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One of the beauties of the American judicial system is that you have a constitutional right to a trial by a jury of your peers. When you file an employment discrimination case, if you can survive all of your employer’s efforts to dismiss your case, you’ll have the opportunity to tell your story to a jury, and have it decide whether your employer should pay you damages for your case.
But it’s not always easy to get to a jury. First of all, it takes time–sometimes a lot of time. In almost all employment discrimination cases, before you can even get into court, you first must file a charge of discrimination with the EEOC and then wait while the EEOC investigates your claims.
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When the EEOC gives you a right to sue letter, you then have the right to file your discrimination case. At that point, employers will do their best to try to get your case dismissed, and they have many opportunities to do so.
If you survive all these attempts, that’s great, but it can sometimes take as long as three years from the time you file your charge of discrimination until the time you finally get to go before the jury. And of course, after all that time, there is no guarantee that you will win your case, and even if you do win, the employer has the right to appeal.
A Cost-Effective Alternative to Litigation
But don’t be discouraged–there are alternatives to litigation. One of these alternatives is arbitration. Arbitration is kind of like a private trial without a jury in which you and your employer get to select your judge.
In arbitration, you don’t have to go to court to bring your claim. Instead, the parties work together to select a neutral third party (the arbitrator) who will decide your case.
Although there are many variations on the types of rules and procedures involved, the process typically goes as follows:
- Your attorney and the attorney for the employer will work together to agree to an arbitrator.
- Once the arbitrator is selected, he or she will work with the parties to set a schedule for the proceedings and work out the applicable rules. Unlike court proceedings, you can establish either detailed or simple procedural rules, such as how much discovery the parties will conduct and how many depositions will be taken. It’s a kind of a do-it-yourself litigation that many people find much more satisfying than the process laid down for them in court.
- Once the ground rules are established, the case will then proceed much like a regular court case, with documents exchanged and depositions taken.
- When the discovery is done, then the parties will then have their arbitration hearing, which often takes place at the arbitrator’s office or the offices of a third-party dispute resolution company, not in court.
- After the hearing, the parties will sometimes submit briefs, and then the arbitrator will issue his award.
In most cases, arbitration awards are final and cannot be appealed except for certain extraordinary circumstances, such as arbitrator fraud.
What Are the Advantages of Arbitration?
There are many advantages to arbitration.
In most cases, it is:
- Much less expensive than traditional litigation
- The length of the typical arbitration case is usually much shorter than the average court case
- You have a say in selecting your arbitrator, rather than being randomly assigned a judge, and you can select someone who has experience in employment related cases
- And the case is private–unlike a public courtroom, no outsiders are allowed to view the case, and the arbitrator’s award is kept private and cannot report to the press
Is Arbitration Right for Me?
On the other hand, there are some things to think about before selecting arbitration:
- In most cases, you won’t be able to do as much discovery and take as many depositions as you would in a court case
- You will not have a jury to decide your case
- The amount of the awards are generally lower than you would get before a jury
- Your case will not be in the public eye and, if you want to make a point, alert the media, or set a precedent for future cases, you cannot do this in arbitration
- And you have a very limited right to appeal an adverse award
Although there are many advantages to arbitration, not all cases should be arbitrated. Sometimes, a trial is the best alternative.
Juries aren’t necessarily sympathetic to large corporate employers, and they often feel sympathy for the employee. If you get a sympathetic jury and you have a strong case, you may obtain a large verdict. This type of emotional response is much less frequent in the arbitration setting.