This article was reprinted by the Michael Carbone listserv.
All too frequently the employment relationship leads to disputes that result in litigation. Mediators see a wide variety of claims, such as wrongful termination, harassment, discrimination, and violation of wage and hour rules.
When preparing to mediate an employment case we must appreciate the need of both sides to be heard. The employee feels that he or she has been wronged, but often the employer will feel the same way simply because a lawsuit has been filed.
Settlements can be negotiated, but before talking about terms we need to listen to what the parties are saying. Joint sessions can be useful, but they can also be counterproductive. Too many joint sessions are confrontational rather than conciliatory.
Customization of the process is the key to success and the participants should consider taking the following steps.
Delay the joint session. The parties should first talk privately with the mediator and have a chance to "settle down." Many parties are tense or nervous when they arrive at the mediation. Or they may be anxious to confront the other side with accusations.
Choose carefully the persons who will participate. The "wrongdoer" may be so defensive as to drive the two sides further apart. It is better to have a different employer representative present, especially the person who has the actual authority to settle.
Provide a meaningful opportunity for an apology. If an apology is to be made it must be given face-to-face. I have seen it done in a joint session and at other times it has been done privately. The claimant might meet with the supervisor or with someone in a higher position of authority. Remember that an apology is not necessarily an admission of liability and that mediation confidentiality provides a safe environment.
MICHAEL P. CARBONE is a senior mediator who has also served as an arbitrator and court-appointed referee. His dispute resolution practice has been built over a period of more than 25 years and covers a wide range of fields. His exceptional combination of transactional and litigation experience enables him to handle complex litigation and other challenging cases.
Michael resolves business and commercial cases, real estate disputes, employment claims, construction claims and defect cases, estate and trust matters, insurance issues, legal malpractice, corporate and partnership disputes, and personal injury cases. In his capacity as a court-appointed referee he has undertaken a wide variety of responsibilities, including sales and appraisals of real property, and the adjudication of trust accounting and administration matters.
He is a member of numerous dispute resolution panels, including the National Panel of Arbitrators of the American Arbitration Association. He is also listed on the mediation and discovery facilitation panels of several Superior Courts.
He is a founder and past president of The Mediation Society, and a member of many other professional organizations, including the Academy of Court-Appointed Masters, the Dispute Resolution Section of the American Bar Association, and the Association of Business Trial Lawyers.
Michael is a frequent author and speaker on alternative dispute resolution issues. He publishes a monthly newsletter entitled "Resolving It" which provides timely advice on strategies for successful mediation and discusses current issues, such as reforming the commercial arbitration process and mediating e-discovery.