Among commonly considered ADR options are peer review panels, mediation, non-binding arbitration and binding arbitration. These can be used either before, and in place of, litigation or after litigation has commenced. The interest in ADR has grown considerably among employers, lawyers and the courts. The primary reasons for this interest can be summarized as follows. Due to the Civil Rights Act of 1991 and the Americans with Disabilities Act, more employment claims have become subject to jury determinations.
Most employers believe that juries are pro-employee.
Compensatory damages for pain and suffering, emotional distress, etc., and punitive damages have become available for more and more employment claims. This, combined with jury trials, exposes a business to a greater risk of large damage awards. State and federal courts are backlogged, and resolution of a lawsuit is generally measured in years, with three to five years not being unusual. Litigation in court is expensive not only in terms of legal fees but also management time involvement. The bottom line is that businesses are looking for less costly, less risky and more expeditious means to resolve their employment disputes.