Recently I got a call from a small business employer. He knew I was an employment lawyer and that I represent small, closely-held or family businesses and that I was also a mediator handling all kinds of business, workplace or community disputes. He had received a letter from a lawyer representing one of his employees alleging sexual harassment in the workplace. He wanted to try to resolve it fairly quickly and asked if he could achieve that using mediation.
He told me that both employees involved were good people and valued employees. He had been through litigation before, and felt that prolonged litigation of this matter would not be good for the company. It would be damaging to the workplace environment and undoubtedly have an adverse impact on all the relationships involved. It was important to him that his company had a healthy workplace. He truly cared about his company and all those working there.
The employer, who owned the company, said that he had contacted an employment litigation firm and discussed the matter with one of their partners. The partner explained that the time for mediation would likely come later, after the case was developed further through the litigation process. But they would have to do some “discovery” first, i.e. that the parties would have to exchange information to know more about the facts in the case. He also said that there would possibly be a need to make some “motions to the court”, which he explained as written requests for the judge to decide and rule on certain matters within the dispute. Then, the litigator continued to explain, after those things were done, they would be in a better position to decide whether mediation or trial would be a better course of action. But most likely, the case would settle.
When the employer asked him how long the litigation would take and what it would cost, the litigator hesitated and was somewhat vague in his response. The lawyer said it would depend on factors beyond their control, but it could take two to three years and the legal fees could easily reach $50,000 – $100,000, and maybe more, depending on if and when it settled.
The employer asked me whether there was a way to mediate and settle the case without going through the litigation process. He was concerned about the negative impact of this process. He also wondered if this litigation process would be able to address the problem and provide solutions like improving the situation in a way that would result in a workplace environment that was better than the one that triggered this complaint.
I acknowledged his valid concerns and his goal. I also confirmed most of what the litigator had told him about costs and time and the need to exchange any relevant information about the dispute. But I suggested that there are other ways to accomplish this information exchange. I suggested that he have a process assessment done, which would provide valuable information so that he could make an informed decision on which process to use for his dispute. That assessment step would also provide a recommendation on whether early mediation was the best approach to his dispute, or whether other ways, including litigation, arbitration, collaborative law or using an ombudsman would be more appropriate for his specific dispute circumstances.
One of the things we would find out very quickly through this assessment was whether both sides were open, willing and able to exchange all relevant information in good faith about the facts in dispute right away. That would tell us whether he really needed the prolonged discovery process of litigation or whether some more streamlined information exchange could be implemented. This was a key factor in whether the options of early mediation or collaborative law were open as good, viable options to him.
I also suggested to him that he as employer and more so the employee in question may not yet be emotionally ready to focus on resolving the matter. There may be a need to engage in the conflict a bit more, and they could use a structured process that accomplished that productively, and then move on to discussions about resolving the matter. I further advised him to ask the employee’s lawyer if they would also be willing to participate in this process assessment. If one or both parties to the dispute did this, then the parties would be able to make an informed decision about which way to go. This assessment and a good decision on process would impact thousands of dollars and much of his time, energy and resources over the next couple of years.
In assessing the situation, several factors that made the dispute a good candidate for early mediation:
- Both sides wanted to maintain confidentiality and keep the matter and the process of resolving it private;
- Both employees involved had very strong work ethics and both liked the company and wanted to stay with the company;
- Both employees involved thought quite highly of each other professionally, wanted to maintain a healthy working relationship and did not want to adversely impact the other professionally;
- They both wanted to address the harassment issue openly and transparently, not avoid it, and then, once it was addressed productively, get back to work as soon as possible;
- Neither employee – both young people in their early thirties – could fathom, never mind participate in, a process that would take two or three years to resolve. They both said that their lives and situations would likely be in a totally different place by then;
- They both were type A entrepreneurial types and wanted to maintain control over the process and the outcome.
Once the employer and the employee assessed and learned more about their situation, they could make a clear choice of a process that was a good fit, one of which was early mediation. The assessment also gave them good insights about what kind of mediator to hire for this case and laid the groundwork for the rules of engagement needed for their specific case. With this “realignment”, both parties were on their way to a good outcome.