SMITH PATTEN’s attorneys have been on the cutting edge of alternative dispute resolution, and do not hesitate to utilize out-of-court methods of dispute resolution in cases where it can produce a positive outcome for our clients.
Mediation by a third-party neutral can be an effective and expeditious means of resolving employment issues prior to the filing of litigation. SMITH PATTEN attorney Spencer Smith has resolved numerous cases without the filing of expensive litigation by fully briefing the case prior to the filing of the lawsuit, demonstrating the strengths of the client’s case. After the filing of a lawsuit, there are often early mediation opportunities, some ordered by the Court. SMITH PATTEN attorney Spencer Smith has resolved scores of cases through mediation during the initial discovery stage in both court-sponsored and private mediation.
Since the early 1990’s when SMITH PATTEN attorney Dow W. Patten drafted and implemented the first mandatory mediation program in the Federated States of Micronesia—still in effect today—SMITH PATTEN attorneys have been actively engaged in ensuring that cases that should settle, do.
SMITH PATTEN’s attorneys are also keenly aware of the downsides of alternative dispute resolution systems and mediation in particular. Some employers abuse the mediation process by not participating in good faith, not having a representative with authority to settle the case present, or using the mediation process as nothing more than an informal discovery process without the protections of the Federal Rules of Civil Procedure or the California Code of Civil Procedure. Consequently, SMITH PATTEN firmly believes that mediation as a one-size-fits-all solution.
Arbitration and Neutral Evaluations are other Alternative Dispute Resolution mechanisms that are often pushed by employers. While these mechanisms may be useful in particular types of cases, such as commercial disputes, SMITH PATTEN does not view these mechanisms as appropriate for the vast majority employment law cases. An individual’s right to a jury trial, while sometimes coming at a cost of time and fees can be more expensive and time-consuming, is nearly always preferable to these ADR mechanisms, as few of the hard-won legal protections for employees apply.