Craig's Corner For Counsel: Employment Arbitration

Thursday, November 1, 2007 - 00:00

Employment arbitration is a hot topic for corporate counsel, so I took the opportunity to call Paul Starkman, partner and chair of the Employment Law group at Arnstein & Lehr, Chicago. Paul is releasing his first book as co-author this month, called Employment Arbitration: Law and Practice. He has extensive litigation experience in a variety of employment-related areas, but it was his multi-arbitration challenge a few years ago that prompted me to ask for an interview for MCC.

At one point in the late 1990s and early 2000s Paul was handling over 70 pieces of litigation and arbitration simultaneously, all involving one company's arbitration program. It was after this storm of work that he decided to lay down his strategies and insights for executives, partners and corporate counsel in this practice book.

Craig Miller: Paul, 70 pieces of arbitration seems like a fire storm. How did you survive that time?

Paul Starkman : It certainly was an unusual time for us, but we were fortunate to have established some essential groundwork that allows you to educate judges, arbitrators and arbitration administrators on the important arbitration issues that must be addressed, such as how you can get courts to enforce arbitration agreements, and what arbitration issues must be left to the arbitrators. However, when you are working on so many unique arbitrations and pieces of state and federal litigation at one time, you also learn what you should have done. And that is why I decided to write a book, first for our group, but also for others who are heading into individual, group or a storm of arbitration. As we all know, arbitration is definitely not cookie-cutter work, and you really need to take into consideration some variables such as the corporate culture, the industry and the jurisdictions where you do business because all of those things can really affect whether your arbitration program will be a success with your employees and with the courts and arbitrators.

Craig Miller: It seems very obvious that employment trends of using more contractors, reduction in work forces, mandatory retirement ages, all filter directly through to the number of arbitration actions and the way they are handled. Given these trends, how do you advise corporate counsel to prepare?

Paul Starkman : All of the trends and issues that companies are facing in courts across the country, such as class actions by non-employees like those who work for cleaning contractors and other vendors, actions attacking mandatory retirement ages in the legal profession, wage and overtime litigation involving huge groups of employees, are also being played out in arbitrations. Arbitrators and arbitration-administering organizations have to deal with class arbitrations, electronic discovery and other cutting-edge issues that they never had to face before. Corporate counsels need to understand that arbitration programs can have many benefits, not the least of which are lower costs and faster resolutions, but arbitration programs can also result in collateral litigation about the enforcement of arbitration agreements and arbitrator decisions that are subject to very little judicial review. Arbitration is not a way to avoid employment trends; it is a different way of dealing with them.

Craig Miller: As employment shifts to more outsourcing and global work-forces, how do you see that affecting arbitration, and is arbitration a trend that has peaked?

Paul Starkman : Although some may feel arbitration is trailing out, I just don't see that happening in the near future. Certainly our globalization will create a different type of arbitration, as we work through each country's requirements and laws. However, as litigation costs continue to rise and the size of class actions and jury verdicts keeps increasing, arbitration is such a corporate savings I just don't see this as simply a trend that will not exist in the future. It will morph to the employment landscape, and may even create new levels to meet the globalization impact, but I believe arbitration is an essential tool for the corporate counsel tool box.

Thanks to Paul Starkman, co-author of Employment Arbitration: Law and Practice with Gail Holtzman and Don Spero. You can also hear Paul talk in greater detail about arbitration at http://feeds.feedburner.com/Westcast.

The book is available this month at www.west.thomson.com site.

For additional employment arbitration insight, the following Westlaw databases are also available:

CCGADREMP- Corporate Counsel's Guide to Alternative Dispute Resolutionin the Employment Context

This resource is designed to assist you develop procedures to resolve employment-related disputes without litigation. It offers discussions on a number of alternative dispute resolution techniques, including arbitration, grievance procedures, mediation, and ombudsman programs. Chapters include preparing and conducting an arbitration, grievance procedures, mediation, and ombudsman programs.

CCGADR - Corporate Counsel's Guide to Alternative Dispute ResolutionTechniques

This is a collection of practical materials for corporate counsel on commonly used Alternative Dispute Resolution (ADR) techniques. It includes materials on arbitration (both domestic and international), negotiation, mini-trials, mediation, summary jury trials, ADR programs in place at various companies, resolving employment-related disputes, ADR providers, professional organizations, and Internet resources, resolving domain name disputes, and resolving Magnuson-Moss warranty disputes. It also provides sample forms and clauses.