Litigation & Arbitration

Administrative Tribunals

Administrative Tribunals are agencies at all levels of government – federal, state, and local – that investigate and sometimes adjudicate labor and employment disputes. These agencies are part of the executive function of government and are usually presided over by an Administrative Law Judge (“ALJ”). Agency adjudications may be conducted through hearings or trials. Such administrative tribunals include CCHRO, EEOC, FINRA, NLRB, NYCCHR, NYSCHR, and OATH. While court actions are public, administrative tribunals are usually conducted in private.

Court Actions

Hearings and trials are proceedings that occur before both Administrative Tribunals and Courts. While hearings involve discrete legal issues that have to be decided during the course of a case, trials result in one party winning and the other losing the case. A trial ends in a verdict that is rendered by a jury, except when it is a “bench trial,” where the verdict is returned by a judge.

Mandatory Arbitration

Mandatory arbitration is enforced by some employers as a condition of employment. Employees try to evade arbitration agreements that their employers forced them to sign on grounds such as coercion, unconscionability, or lack of clarity. Policy arguments against mandatory arbitration – sometimes called “cram-down arbitration” – include the unfair bargaining power that employers hold over employees. Challenging mandatory arbitration agreements is an uphill battle in most jurisdictions because of the Federal Arbitration Act (FAA) of 1925, which contains very strong provisions in favor of arbitration and enforcing arbitration agreements. Often mandatory arbitration is part of a more comprehensive ADR program that includes stepped procedures – where parties go from direct negotiations, to mediation, to arbitration – and provisions regarding the allocation of fees and costs that reflect the entitlements embodied in the corresponding statutes governing court actions.