Over 2013, we heard a few reasons from employers and companies for why they would forego using Collaborative Law – a much more efficient dispute resolution process than litigation – and opt for litigation or arbitration instead.
For any employer or company who has either not heard of the option of using Collaborative Law (CL) to resolve its employment disputes or has been advised by counsel that they should not utilize CL but should opt to litigate, it may be helpful to debunk some of the stated reasons against using CL. Here are the ones we have heard offered:
It’s not a good idea to use a process that is fairly new and doesn’t have the track record that litigation and using outside litigation counsel have. Litigation is the way to go and its costs, while huge, are the accepted costs of doing business.
If we use CL, we will be viewed by employees as an easy settle, thus opening up the floodgates for lots of employees to bring claims thinking they will get a quick settlement without going through litigation.
We believe we have a really strong defense and will win easily. Because of this, we also believe that the employee will either not be able to find a lawyer that will take the case or will choose not to bring the lawsuit against the company. So we won’t do anything until the claim is actually filed.
Let’s answer some of these perceived shortcomings to using CL in employment disputes.
As an opening thought, if efficiency, time, money, confidentiality, preserving relationships, maintaining a healthy workplace and controlling the process and the ultimate resolution (risk avoidance) are important factors for the employer, these concerns are better served by CL or early mediation than by litigation.
First, as to the “track record” of litigation vs. CL, while CL is fairly new (CL started in 1990), the same argument was once widely used against mediation in the early 1980s. Today, mediation has become the process of choice for most parties in disputes. What we do know is that litigation is more expensive, takes longer, is more draining, more damaging to relationships and less efficient than CL. Further, in litigation, the parties give up their control over the process, the outcome and the privacy of both. So the “track record” argument does not favor litigation unless one embraces the mindset of “the devil we know is better than the one we don’t know.”
Next, the perception that if an employer uses CL, it will open the floodgates of claims is also a convenient misconception. CL lawyers are trained to assess cases first to see if they are good candidates for using CL. That initial assessment looks at the overall circumstances and, among other things, makes these inquiries:
Is there a viable, legitimate, legal claim? And is there a viable defense?
Are there interests involved other than money damages?
Are the parties involved capable of participating in a structured and transparent process of interest-based (“Getting to Yes”) negotiations?
If the answer to any of these is ‘No”, then a trained CL lawyer will probably opt not to use the CL process because it’s not a good candidate for CL. Because of this initial assessment and screening by CL lawyers, the only cases that would be presented to employers as good candidate for CL would be those that have merit and make sense to approach this way. When an employer/company gets a letter from a CL lawyer representing an employee suggesting that CL be used to resolve the matter, the case has already been screened and those meritless cases that employers or their counsel are worried about opening the floodgates to would not be coming through the much narrower CL doorway. In a real sense, the CL lawyers assist employers by narrowing down the cases that come through this portal to only cases for which it would make sense for the employer to resolve through CL rather than to litigate them.
If these cases did go to litigation, after prolonged discovery, motion practice and spending tens of thousands of dollars and a couple of years, they would likely then get settled, not tried. (Over 95% of the cases filed in courts settle). Instead, the company can encourage those who have a viable claim and the right set of variables to use a less expensive, less-draining and less time consuming process – a win-win for the company and the employee.
In the right cases, the efficiency argument will always favor using CL over litigation. So the only reasons left for litigating claims instead of using CL would be if the employer either (1) identifies an issue that it wants to create some case law and precedent for (highly unlikely) or (2) there is a need for some injunctive relief that only a court can grant. Even if there was a need for injunctive relief, there is no reason that the parties couldn’t identify that and address it in a written agreement. In doing so, the parties control the outcome and avoid the cost and time spent researching, drafting, filing a complaint, moving for injunctive relief and having a court hearing on it.
The option of CL actually provides value – on several levels – to the company/employer when used in the right cases. It’s worth challenging these misconceptions and thinking our way past them.