IS LITIGATION YOUR FINAL ANSWER? 703
Note will primarily focus on the two most commonly used ADR
processes to resolve employment disputes—mediation and
arbitration.^158
- Mediation
Actual processes can vary greatly, but generally, mediation
is a voluntary, informal, and confidential process in which a
neutral third party helps two or more parties resolve a dispute.^159
Mediators assist parties to guide the dialogue, generate options,
maintain a flow of information, and agree on a resolution.^160
Mediation is less time-consuming than going to court because
hearings often last for one day,^161 whereas the litigation process
may not resolve a dispute for years.^162 Even though parties must
(^158) See Susan A. FitzGibbon, Arbitration, Mediation, and Sexual
Harassment, 5 PSYCH. PUB. POL’Y & L. 693, 697 (1999) (citing U.S. GEN.
ACCOUNTING OFFICE, ALTERNATIVE DISPUTE RESOLUTION: EMPLOYERS’
EXPERIENCES WITH ADR IN THE WORKPLACE, 1997 WL 709361, at *14–15
(reporting eighty percent of employers use mediation and nineteen percent use
arbitration to resolve disputes with nonunion workers)).
(^159) RISKIN ET AL., supra note 152, at 14, 203–230 (discussing and
analyzing models of mediation, including facilitative, transformative, and
understanding-based mediation). In a facilitative mediation, the mediator
guides parties to discuss the conflict and promote mutual understanding. See
Briana L. Seagriff, Note, Keep Your Lunch Money: Alleviating Workplace
Bullying with Mediation, 25 OHIO ST. J. ON DISP. RESOL. 575, 591 (2010). In
a transformative mediation, mediators encourage and support the parties in
improving the quality of conflict interaction to reach a positive outcome. See
ROBERT A. BARUCH BUSH & JOSEPH FOLGER, THE PROMISE OF MEDIATION:
THE TRANSFORMATIVE APPROACH TO CONFLICT (rev. ed. 2005), reprinted in
RISKIN ET AL., supra note 152, at 222. In understanding-based mediation,
mediators help parties reach a mutually agreeable solution by encouraging
parties to understand the substance of the conflict and collaboratively make
decisions in the dispute resolution process. See GARY FRIEDMAN & JACK
HIMMELSTEIN, CHALLENGING CONFLICT: MEDIATION THROUGH
UNDERSTANDING (2008), reprinted in RISKIN ET AL., supra note 152, at 224–
26.
(^160) See RISKIN ET AL., supra note 152, at 221–22; Seagriff, supra note
159, at 591.
(^161) See FitzGibbon, supra note 158, at 717.
(^162) See, e.g., Gordon W. Netzorg & Tobin D. Kern, Proportional
Discovery: Making it the Norm, Rather than the Exception, 87 DEN. U. L.