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How to Avoid a 'Runaway Jury'

By Mark N. Reinharz and Terence M. O'Neil

In the wake of several United States Supreme Court decisions, many employers have implemented mandatory arbitration procedures in order to avoid costly federal and state law employment discrimination trials. The idea that arbitration offers a cheaper alternative and avoids the possibility of a 'runaway jury' has considerable appeal for employers who are now subject to a host of employment discrimination and other workplace protection statutes.

Unfortunately for employers, however, arbitration is not the panacea it was originally thought to be. Many of the so called 'advantages' once considered to be the impetus for adopting an arbitration procedure for workplace disputes do not exist, or at least do not offer the benefits many hoped they would. One alternative, mostly overlooked in the employment law context, is the issue of entering into agreements with employees to waive their rights to jury trials. A recent decision in the Southern District of New York has suggested that such an approach may be lawful. As discussed below, such agreements may offer employers some of the benefits they hoped to have achieved through the adoption of an arbitration procedure ' without the pitfalls.

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