The Jury's Still Out-Way Out: Subtracting the Jury from the Equation Decreases Uncertainty in Employment Cases

Shultz, Chad, HRMagazine

In Las Vegas, the odds may be against you, but at least they are consistent. Jury trials, by contrast, are notoriously unpredictable. Whenever you face a jury trial, you face ever-changing odds that make it difficult to assess the wisdom of a decision to continue or settle.

In a mock trial program designed by my law firm, managers watch a videotaped trial and then deliberate like a jury. The verdicts in this training exercise always vary widely, even though the "jurors" are all members of management in the same company and all watch the exact same trial.

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Are these managers so different from actual jurors? Probably not.

Jurors inevitably bring varying perspectives and backgrounds to the jury box and use those experiences like a prism to see facts and events in ways impossible to anticipate. The naked truth is that it is tricky to predict how a jury will respond to any set of facts. Fortunately, however, there are alternatives--some more promising than others.

Less Impressive Options

Many employers have implemented elaborate multistep dispute resolution procedures designed to settle employment claims at the earliest possible stage. Other employers have taken more limited approaches, adopting one or two specific alternatives--mediation or arbitration, for example--with the same goal in mind.

Typically, however, the last resort in a multistep procedure--and the only alternative to a jury trial in many organizations--is arbitration.

Some employers require employees to agree to arbitration as a condition of employment (a practice known as "mandatory pre-dispute arbitration agreements"). Others offer arbitration to employees as a voluntary alternative to litigation when all else has failed.

While employment arbitrators may be more knowledgeable and less fickle than juries, and while the cost of arbitration may be lower than that of a court trial, arbitration is not necessarily all that it has been cracked up to be. In fact, some experts and practitioners believe that mandatory arbitration encourages claims …

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Publication information: Article title: The Jury's Still Out-Way Out: Subtracting the Jury from the Equation Decreases Uncertainty in Employment Cases. Contributors: Shultz, Chad - Author. Magazine title: HRMagazine. Volume: 50. Issue: 1 Publication date: January 2005. Page number: 97+. © 1999 Society for Human Resource Management. COPYRIGHT 2005 Gale Group.

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