Compare Mediation, Arbitration, and More
Pros, Cons, and Best Practices
Dealing with harassment and discrimination in the workplace can make reaching a resolution with your employer seem daunting. This process can often exacerbate overwhelming feelings, and feelings of re-victimization and hopelessness.
If you’re reading this, chances are the current process isn’t working in your favor. Whether you’re doubting your employer’s fairness in handling your complaint, considering leaving due to the environment, placed on a Performance Improvement Plan (PIP), experiencing retaliation, being terminated after making a complaint with HR, seeking legal advice, or filing a complaint with the EEOC, it’s essential to know your options for resolving disputes.
If you don’t know your options, your company will make decisions that most favor them and their interests.
The resolution option you choose will determine the ground rules for resolving the dispute. Some allow for flexibility while others are more restrictive. We want to provide a clear overview of your options, and outline their pros, cons, and key considerations.
FIRST – Before pursuing any course of action, it’s essential to identify the outcome/s you want. Ask yourself, what will make me feel safe? What will make me feel heard? What will be a fair outcome for me? What change/s would I like the company to make to ensure this issue is corrected in the future?
If you know what outcome/s you want , you can approach the process with clarity and confidence. We want to make sure you get the best outcome for you
Types of Workplace Dispute Resolution Methods
We have included the dispute resolution options, going from least risky to most risky. These options can be used between yourself and the company, and/or if you file a complaint with the EEOC.
| Method | Definition | Attorney Involvement | Pros | Cons | Things to Be Aware Of |
| Peer Review | Disputes are reviewed by a panel of employees or peers. | Not necessary | – Promotes a sense of fairness – Insights from colleagues | – Potential bias from peers – May lack confidentiality | – Effective for addressing disputes related to company policies or peer behavior. – Relies on the panel’s impartiality and understanding of the issues. |
| Negotiation | Direct discussions between parties to resolve disputes without third-party intervention. | Recommended, but not necessary | – Control over the outcome – Can preserve relationships | – Power imbalances can affect fairness – No legal enforcement | – Effective communication and negotiation skills are crucial. – Informal and flexible. |
| Mediation | A neutral third party facilitates a discussion to help parties reach a mutually acceptable agreement. | Recommended, but not necessary | – Confidential – Encourages cooperation – Flexible solutions | – Non-binding – May not resolve the dispute | – The mediator does not make decisions but facilitates dialogue. – Success depends on both parties’ willingness to compromise. – The EEOC Complaint Process encourages and facilitates mediation between the employer and employee |
| Conciliation | Similar to mediation, but the conciliator may provide a non-binding recommendation. | Recommended, but not necessary | – Neutral guidance – Can lead to voluntary compliance | – Non-binding – Success depends on acceptance of recommendations | – The conciliator offers solutions rather than just facilitating dialogue. – Useful when parties need guidance but want to retain decision-making power. |
| Arbitration | A neutral arbitrator hears evidence and makes a binding decision. | Strongly encouraged | – Faster and cheaper than litigation – Private | – Potential bias – Limited grounds for appeal | – Often favored by employers. – Consider opting for arbitration only if you have a say in selecting the arbitrator. |
| Forced Arbitration | An arbitrator hears evidence and makes a binding decision. | Strongly encouraged | – Faster and cheaper than litigation – Private | – Potential bias – Limited grounds for appeal | – Often favored by employers. – Consider opting for arbitration only if you have a say in selecting the arbitrator. – For Sexual Harassment Disputes only, Arbitration is an option but not required |
| Litigation | Legal process involving a trial in a court. | Required | – Transparent – Legally binding – Right to appeal | – Time-consuming, frustrating process – Expensive – Requires filing a complaint with the EEOC, a Right To Sue Letter from the EEOC | – The most formal and structured method. – Ideal for serious disputes where legal precedents and public records are important. |
How to Choose the Right Resolution Method for You
When selecting a dispute resolution method, consider the nature of the conflict, the desired outcome, and the potential impact on relationships within the workplace. Here are some practical steps:
- Check your offer letter and Employee Handbook
- Check your offer letter and/or employee handbook to see if a dispute resolution option is defined or required.
- Familiarize yourself with your organization’s policies on dispute resolution.
- Understand your rights:
- Be aware of your legal rights and protections as an employee; Determine the Type of Harassment and Discrimination you have experienced according to the law.
- Be aware of your legal rights and protections regarding dispute resolution. If your employer stipulates Arbitration, be aware that for Sexual Harassment cases specifically, you can choose other resolution options
- Consult with legal counsel:
- Seek advice on the best resolution method based on company policies and legal considerations
- Documentation
- Ensure all incidents and communications are clearly documented
- Access Documentation Templates
Understanding and choosing the right dispute resolution method is key to putting yourself in the best possible position for a successful outcome.
Share your experience and find recommendations in the Navigating Workplace Harassment and Discrimination Facebook Group.
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