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1、ADRADR Alternative Dispute ResolutionAlternative Dispute Resolution A Toolkit for the HR ProfessionalA Toolkit for the HR Professional compiled by thecompiled by the Employee and Labor Relations CommitteeEmployee and Labor Relations Committee The Society for Human Resource Management (SHRM) is the w

2、orlds largest association devoted to human resource management. Representing more than 175,000 individual members, the Societys mission is to serve the needs of HR professionals by providing the most essential and comprehensive resources available. As an influential voice, the Societys mission is al

3、so to advance the human resource profession to ensure that HR is recognized as an essential partner in developing and executing organizational strategy. Founded in 1948, SHRM currently has more than 500 affiliated chapters within the United States and members in more than 100 countries. Visit SHRM O

4、nline at . This Toolkit is current as of March 1, 2003, and will be updated annually. The Toolkit and attached information is intended solely to provide general, summary information and is not intended as legal advice. Table of ContentsTable of Contents Introduction Professional Education Ju

5、dicial Rulings Legislation Resources FAQs Reference Materials Sample Documents Appendix (presentation) IntroductionIntroduction Tired of employment litigation and paying high settlements to avoid costly court proceedings and jury trials? Consider Alternative Dispute Resolution (ADR). ADR techniques

6、can resolve disputes that arise in your workplace in a fair and expedient manner, both for the employee and employer. Professional EducationProfessional Education “Mediation, Arbitration and Alternative Dispute Resolution: What HR Needs to Know” (click here for Presentation) Authored by Paul Salvato

7、re, Esq., partner, Proskauer Rose LLP, this training program was co- presented by Mr. Salvatore and Joy Gaetano, SPHR, SVP Corporate Human Resources, USFilter, at the 2001 SHRM Annual Conference. Judicial RulingsJudicial Rulings Circuit City v. Adams EEOC v. Waffle House Murray v. UFCW Local 400 In

8、re Halliburton LegislationLegislation Federal Arbitration Act ://uscode/9 Other Federal Legislation ResourcesResources American Arbitration Association CPR Institute for Dispute Resolution Judicial Arbitration and Mediation Services Federal Mediation and Conciliation Services Labo

9、r Policy Association Equal Employment Opportunity Council NASD National Labor Relations Board New York Stock Exchange Securities Exchange Commission FAQs FAQs (1 of 4)(1 of 4) What is ADR? ADR stands for Alternative Dispute Resolution and refers to procedures for settling disputes by means other tha

10、n litigation. Such procedures are usually less costly and more efficient than litigation. In the employment context ADR is utilized by an employee knowingly entering into an agreement with his/her company to resolve current or future conflicts that arise in the workplace through one of or a combinat

11、ion of ADR procedures. What is the purpose of ADR? The purpose of ADR is to resolve conflict in a more cost-effective and expedited manner while fostering long term relationships. What are the most common ADR procedures? The most common methods of ADR are: grievance procedure the use of an internal

12、or external ombudsperson mediation arbitration FAQs FAQs (2 of 4)(2 of 4) What is an ombudsperson? An ombudsperson is an internal or external professional in the field of employment matters who employees may address with grievances regarding employment issues. An ombudsman should be perceived by bot

13、h the employee and employer as being able to objectively weigh the facts of a conflict and offer ideas to resolve it. The recommendations of an ombudsperson are non-binding. An example of an internal ombudsperson is an HR representative within the company who may or may not be regularly assigned to

14、the employees business unit. An example of an external ombudsperson is an outside expert in the field of employee relations, such as a consultant or an attorney, who may regularly advise the company and employees in these types of matters. FAQs (3 of 4)(3 of 4) What is mediation? Mediation is basica

15、lly negotiations carried out with the assistance of a neutral third party. Generally, a mediator will have had extensive related experience in labor negotiations or in the field of law, and will be trained and experienced in employee conflicts that arise in the workplace. The recommendations of a me

16、diator are non-binding. What is arbitration? Arbitration is a process in which an outside neutral (arbitrator) renders a decision after hearing the arguments and evidence of both the employee and the company. This decision is binding between the parties. An employee must either agree to accept bindi

17、ng arbitration as a condition of employment well in advance of any anticipated conflict, or agree to resolve specific existing disputes by way of arbitration. It is highly recommended, if possible, that binding arbitration be a consideration of employment by any employee of a company at the time of

18、he/she has received an offer of employment. FAQs FAQs (4 of 4)(4 of 4) Why should I know about ADR? As an HR practitioner, it is important that you are aware of ADR as a practical and fair alternative that can help supplement your current grievance procedures and decrease your organizations litigati

19、on costs. Who is the target audience to learn about ADR? Within your company, your management team should understand the concept of ADR and consider whether it is a practical solution for your workplace. If you are a SHRM chapter member, you may want to share this information with fellow chapter mem

20、bers to develop their professional understanding of the concept of ADR. How Common is ADR? The concept of ADR is very common in union settings. Due to the high costs of increased litigation and regulation, it is becoming more commonplace in non-union settings. Reference Materials Reference Materials

21、 (1 of 2)(1 of 2) SHRM Amicus Brief “This is the Year that will Decide the Future of Arbitration”, Paul Salvatore, Esq. and John F. Fullerton III, Esq., Corporate Counsel, February 2001 “Mediation and Arbitration of Employment Law Claims”, Paul Salvatore, Esq., SHRM White Paper, April 2001 “Workplac

22、e Arbitration Agreements Enforceable, Supreme Court Rules”, Margaret Clark, SHRM HR News, March 2001 Reference Materials Reference Materials (2 of 2)(2 of 2) “Committee Educates Members on Alternative Dispute Resolution,” Joy Gaetano and Paul Salvatore, SHRM Committee Corner, February 28, 2003 Sampl

23、e DocumentsSample Documents Sample Mediation and Arbitration Agreement AppendixAppendix 2 001 P R O SK A U E R R O SE LL P 2 001 P R O SK A U E R R O SE LL P Presented by: PRO SK A U ER RO SE LLPPRO SK A U ER RO SE LLP MEDIATION, ARBITRATION AND ADR: MEDIATION, ARBITRATION AND ADR: WHAT HR NEEDS TO

24、KNOWWHAT HR NEEDS TO KNOWWHAT HR NEEDS TO KNOW Speakers: SOCIETY FORSOCIETY FOR HUMAN RESOURCEHUMAN RESOURCE MANAGEMENTMANAGEMENT The Skys the Limit!The Skys the Limit! June 24-27, 2001 Joy Gaetano USFilter Paul Salvatore, Esq. Proskauer Rose LLP SHRM COPYRIGHT DISCLAIMER - NOT FOR PROFITABLE USE “M

25、ediation, Arbitration and Alternative Dispute Resolution: What HR Needs to Know” () () The concept and practice of Alternative Dispute Resolution (ADR) is complex, and this presentation is primarily designed to provide an overview for the HR practitioner. If you are considering ADR for your company,

26、 it is recommended that you consult with your employment legal counsel. If you would like to present this material within your company or to fellow HR practitioners, please contact a member of the SHRM Employee and Labor Relations Committee . LogisticsSpeakers Notes Speakers Notes - Power Point Gene

27、ral Information Logistics Accompanying text Speakers Notes: General Information (1 of 2)(1 of 2) What is the purpose of ADR?What is the purpose of ADR? The purpose of ADR is to offer a more cost-effective and streamlined approach to resolving employee conflicts in the workplace. Why should I know ab

28、out ADR?Why should I know about ADR? As an HR practitioner, it is important that you are aware of ADR as a practical and fair alternative that can help supplement your current grievance procedures, and decrease your organizations litigation costs. Who is the target audience to learn about ADR?Who is

29、 the target audience to learn about ADR? Within your company, your management team should understand the concept of ADR and consider whether it is a practical solution for your workplace. If you are a SHRM chapter member, you may want to share this information with fellow chapter members to develop

30、their professional understanding of the concept of ADR. Speakers Notes: General Information (2 of 2)(2 of 2) Can I use the presentation in this Toolkit to train others?Can I use the presentation in this Toolkit to train others? You are welcome to share the information contained in this presentation

31、with your companys management team or fellow SHRM chapter members. We recommend that you consult your companys employment counsel or a member of the SHRM Employee and Labor Relations Committee for assistance. How can I best set up a training session? How can I best set up a training session? Refer t

32、o the Logistics section in this Toolkit . Speakers Notes: Logistics This Power Point presentation is ideal for group lear ning, whether an in-person meeting, teleconference, including electronic meeting place, or videoconference. It is recommended that you read the accompanying text Speakers Notes t

33、o further clarify your understanding of the concepts, analyses or practices that are detailed in this presentation. The audio version of this presentation is available on the CD-ROM of the 2001 SHRM Annual Conference in San Francisco, California that is on sale via the SHRM Store . Speakers Notes: A

34、ccompanying Text (1 of 3)(1 of 3) SLIDE #3: Make sure to mention that the Circuit City case provides the high water mark of legal enforceability of Arbitration Agreements. SLIDE #6: When discussing internal mechanisms, especially joint management-employee “problem review boards” and peer review boar

35、ds, advise the audience of possible Electromation issues under the Nation Labor Relations Act. Section 8(a)(2) of the NLRA prohibits company domination of or interference with any labor organization. In Electromation,309 NLRB 990 (1992), the Board declared unlawful employee committees established in

36、 a non- union settings to address issues relating to various terms and conditions of employment. In order to avoid Electromation problems in a non-union setting (in a union setting the union must approve the processes that deal with the resolution of grievances) it should be made clear that no one i

37、s acting as a representative of any employees, do not formalize any employee committees, limit the decisional authority of any committee, and do not allow committees to make proposals to a management on behalf of the employees. This is by no means an exhaustive explanation and Electromation issues a

38、nd such issues should be carefully analyzed. If you choose to give this presentation on your own you should make sure to incorporate the provided Power Point presentation, and consider including the following important points in your discussion. Speakers Notes: Accompanying Text (2 of 3)(2 of 3) SLIDE #8: When discussing mediation you may want to point out that mediation has an