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“Time is of the Essence” Provisions in Contracts: What Does it Mean?

Labor and employment law in California | attorneys / lawyers in Sacramento

Labor and Employment Litigation, Arbitration and Mediation

It is generally better to resolve disputes long before it becomes necessary to enlist an attorney to pursue or defend claims. This is true regardless of the area of law, but perhaps even more so in labor and employment law.

It is often difficult to predict an outcome left in the hands of a judge or jury. Emotional and financial considerations, which seem as though they should be excluded from the equation, often become key factors in the outcome. Many attorneys do not consider this fact, and therefore fail to grasp the dangers – which can lead to disastrous consequences.

At Porter Law Group, we understand not only the legal issues surrounding labor and employment, but how situations often play out in the real world. We use our knowledge and experience to pursue just results for our employer clients, whether in litigation, arbitration or mediation.

Differences between litigation, arbitration and mediation

If you are a viewer of TV courtroom dramas, you are familiar with the litigation process. To commence a litigation, a lawsuit is filed in the County or Federal Court. Depositions and other forms of “discovery” are made to determine the relevant facts and access the relevant documents. Various motions to the judge may be made, and eventually the case is scheduled for a courtroom trial. Along the way, efforts are made to settle the case before trial. These settlement efforts are either imposed by the court or initiated by the litigants or their attorneys. Most of these efforts take the form of a nonbinding or “judicial” arbitration or mediation or a “settlement conference,” which is similar to mediation. Most litigations settle before they reach their trial date. If the case does not settle, then it is tried before a judge or jury.

Arbitration is similar to litigation, except that instead of having a “trial,” the parties have an “arbitration.” Instead of a judge or jury, there is an “arbitrator” or a panel of arbitrators. Most key events take place in the conference room of the arbitrator, who is often a retired judge or senior attorney who is also sometimes particularly knowledgeable in the area of law at the heart of the dispute. Sometimes arbitration is required by the terms of the contract that binds the parties. Other times the parties mutually agree to use arbitration instead of going to court.

The rules under which arbitration is conducted are sometimes determined by prior agreement, and sometimes determined by the forum selected. For example, the widely used American Arbitration Association has published sets of rules for conducting arbitration. The cost of the arbitrator and arbitration is often split between the parties. Sometimes, the party who wins the arbitration receives an arbitration decision which requires the losing party to reimburse the winning party for what they paid for the arbitration and arbitrator. Arbitration decisions are often sent to the court so the judge can give court approval to the decision as if it had been originally decided by a judge or jury. In fact, it is usually more difficult to appeal an arbitration decision than one originally made by a judge or jury. Arbitration is often less expensive than litigation, although this is not always the case.

Mediation is different from either litigation or arbitration. With mediation, the parties appear before a neutral learned third person or sometimes a panel of such persons who have been given the title of “mediator.” Through a series of discussions and negotiations known as “mediation,” an effort is made to resolve the differences between the parties, usually through compromise. Sometimes mediation is used during the litigation or arbitration process to try to resolve disputes and avoid the further time and expense of continuing litigation or arbitration. If mediation is not successful, the litigation or arbitration process continues. Mediation is generally nonbinding. The parties usually share the cost of the mediator equally. Mediation is usually less expensive than either litigation or arbitration. Where the parties are reasonable people and a good mediator is used, it can be an excellent and cost-effective mode of dispute resolution. Where either party is unaware of the law, or the facts, or is emotionally unsuited to compromise, mediation is often unsuccessful.