What Should be Included in an Arbitration Clause Used in Business Contracts?
October 10, 2022 | Joan M. Quade
Many companies are choosing arbitration to resolve business disputes, as litigation has become more and more expensive, and it sometimes takes years to get to trial. The district courts are still very behind from the COVID pandemic, adding to the delay. Even after trial, the appeals can go on for years, costing additional resources and time. So, what do you put into an arbitration clause that accomplishes what you want? First, you should always consult with your attorneys based upon your particular business needs. They can draft the perfect arbitration clause for you, after discussing your business goals and philosophy about dispute resolution. Some companies need or want to take a more litigation-like approach regarding disputes and want a requirement to arbitrate because of its cost savings and speed, but also to include some rights to limited discovery in the process. Other businesses take a more collaborative, problem-solving approach to reach a mutually beneficial and economical resolution to problems. They want a requirement in the clause to attempt to resolve any disputes before they file for arbitration, through settlement efforts or even mandatory mediation. If the collaborative, problem-solving method does not work, they want to streamline the dispute resolution through a well-defined arbitration process. Both philosophies need specific clauses that spell out the…
Read MoreWorkplace Investigations
October 4, 2022 | Joan M. Quade
What is a workplace investigation? A workplace investigation is where a private company or public employer, such as a city or county, hires an investigator, usually an attorney who is experienced in investigations and employment law, to gather documents and interview people to determine if wrongdoing has occurred or company policy has been violated. The investigation is needed to determine what occurred in a particular situation when facts are known or unknown, or allegations have been made about an event and the complete truth of what occurred is unclear. It is the job of the investigator to gather facts through the review of documents, review of video or other evidence, if available, and to interview people who may have knowledge and information helpful in discovering the truth. What are some examples of workplace investigations? Examples of some of the issues that many times require employment investigations include, but are not limited to, employee theft, allegations of sexual harassment or bullying, assault in the workplace, misuse of company property or funds, sharing of confidential company information, inappropriate use of the company internet and accessing inappropriate internet sites, falsely claiming to work full time, acceptance of gifts or other ethics standards set by the employer and other general claims of employee misconduct. For public employers,…
Read MoreEarly Mediation in Your Civil Litigation Case: A Time and Cost Saver, or a Waste of Time and Money?
September 19, 2022 | Joan M. Quade
The short answer is that it depends. But there are many cases where, with hindsight, we can say that it would have been beneficial to try early mediation. There are some cases where we tried early mediation and they settled before the parties spent a lot of money and time. These are usually the happiest litigants. In my 35 years as a lawyer and advocate for litigants, in many different types of civil litigation cases, and my years as a mediator and an arbitrator, I can tell you that there are many cases that would, and many that did, do well in early mediation. There are also many more cases, especially in the last years, that should have tried early mediation and settled. Litigation should be a last resort for dispute resolution. It costs too much, and it takes too long. Good lawyers, who have a thorough understanding of the law and experience in the litigation process, and who are representing reasonable clients, should be able to negotiate a settlement with the help of a skilled mediator. More and more the parties wish, as they slog through the litigation process, that they would have settled earlier in the process, instead of spending the money and time it takes to litigate. 96% of all cases settle…
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