Mediating Employment Disputes

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We have received several questions concerning the approach to mediating disputes that arise in the workplace. We have found that mediation works well to resolve workplace disputes because it allows the parties to maintain a relationship while reducing adversarial tension and increasing the likelihood of a low cost/high benefit settlement.

Before entering mediation, parties should understand that there is a spectrum of mediation approaches from facilitative to evaluative. On the facilitative side, mediators never offer an opinion of any kind concerning the outcome of a dispute. On the extreme evaluative side, a mediator will freely offer opinions about difficulties in a case, the value of evidence, the likelihood of success, or reasonable settlement terms in a specific dispute. In the employment law context, mediators will use techniques that may combine facilitative and evaluative approaches. Few mediators fall at one end of the spectrum. Instead, most practitioners find that resolving a dispute requires the use of numerous techniques which means they fall somewhere near the middle of the spectrum.

In addition to understanding a mediator’s approach to the process, a party is well advised to be aware of the mediator’s background and understanding of the law of the case involved. As a party, feel free to demand that your mediator have substantive knowledge of the subject matter of your dispute. This will increase the efficiency of the mediation process.

We recommend that all parties to mediation evaluate the case to determine the proper timing for attempts at a mediated settlement. We are happy to discuss these issues with the parties and their attorneys to be certain that a settlement is more likely at a given point in the dispute. Sometimes mediation should occur before suit is filed and money is spent, other times a certain amount of information must be exchanged through discovery before mediation can prove fruitful. Only an experienced employment mediator can answer these types of questions.

Before beginning the process, we recommend that you agree on certain ground rules. We establish ground rules suitable to both parties, and reduce them to a written Agreement to Mediate. The ATM sets forth all important matters, including timing, costs, required parties, experts, confidentiality, and process issues.

We also insist that parties come to the mediation prepared to participate fully in the process. This may mean that attorneys are required to file briefs setting forth their client’s positions prior to beginning the process. At a minimum, we would expect that all decision-makers are available to participate in the mediation on the docketed date. We may also request any previously filed court documents in order to be current with the submissions for litigation. The more substantive knowledge the mediator has with the area of law, the less background material required.

In addition, we would ask that the parties decide prior to mediation who will participate in the various stages of mediation. Will the attorney make an opening statement? Will the employee be able to communicate effectively with the employer? Should the employee bring moral support in the form of spouse, friend, or parent? Will management appear through human resources, or by appearance of direct supervisors? Knowing in advance who will take part in mediation can have a major impact on the outcome.

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