JAMS mediators and arbitrators successfully resolve cases ranging in size, industry and complexity, typically achieving results more efficiently and cost effectively than through litigation. JAMS neutrals are skilled in alternative dispute resolution (ADR) processes including mediation, arbitration, special master, discovery referee, project neutral, and dispute review board work.
JAMS Employment Practice Group
Employment law is one of the fastest developing areas of law in the United States 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.
JAMS has been a leader in alternative dispute resolution (ADR) for 35 years. JAMS 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 JAMS as a result of a mandatory pre-dispute clause must first be reviewed by our employment experts before administration begins to ensure compliance with JAMS Minimum Standards of Procedural Fairness. If an arbitration clause or procedure does not comply, JAMS will notify the employer that the arbitration demand will not be accepted unless there is full compliance with JAMS’ Minimum Standards.
For more information, the following materials are posted on the JAMS website at www.jamsadr.com: JAMS Employment Arbitration Rules & Procedures; JAMS 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. States may have specific requirements related to employment arbitration and you should make certain to remain apprised of applicable case law in your jurisdiction.
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:
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:
* State and Federal laws may affect the use of arbitration in pre-dispute employment programs/contracts. It is recommended that you consult experienced counsel for advice.
JAMS encourages the use of mediation and of voluntary arbitration that is not a condition of initial or continued employment. JAMS 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, JAMS will comply with the rulings or laws in the applicable cases or jurisdiction. Absent such proscriptions, JAMS 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
Step Four: IMPLEMENTATION
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 JAMS in your program or setting a case, call your local JAMS office at 1.800.352.5267.
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 JAMS.
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 JAMS. If the parties are unsuccessful at resolving the dispute through mediation, the parties agree to arbitration administered by JAMS pursuant to its Employment Arbitration Rules & Procedures and subject to JAMS 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
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