• mediation speeds up resolution
    saves money, and satisfies clients.


employment mediation

The employment relationship is something most people take very much to heart—the job becomes part of an individual’s identity, and the society of the workplace is important to the employee. No surprise that employment cases, which generally arise out of an involuntary termination of employment or harassment (perceived or actual) which poisons the relationship, invoke strong emotions on the employee side. The same may well be true on the employer side of the relationship as well—employers are accustomed to making the business decisions and not having them challenged by subordinates. Management may have important institutional issues at stake in an employment case that appears to involve just one individual, and which will affect how management views the case and how the case is handled. Reductions in force and non-competition agreement cases are situations where this is particularly common.

The terrain on which employment cases are fought out ensures that the process will be especially toxic. Often the employee cannot make out a case without accusing the employer of conduct that is anti-social, such as racism or sexism. Often the most convenient defense is to challenge the work performance of the employee, who is likely to take that criticism personally. Add to this the fact that the “thought crime” of discrimination is generally not susceptible to clear proof one way or the other. A jury or judge will be called upon to decide what a decision-maker was thinking at the time the challenged decision was made.

Because the problems that underlie employment disputes are bound up in human emotion, the employment mediator must be comfortable dealing with emotions.

There are a number of conventional expectations both sides usually have for an employment settlement, and the mediator should understand what they are, whether it is confidentiality or tax allocations.

An effective employment mediator must be able to grasp and understand the various doctrines and rules that may be applicable. More than a single claim is often presented, and different measures of damages will apply depending on the claim.

In employment litigation, facts that may be legally irrelevant — the employee’s length of service, for instance — can be important to how a jury will view the case. An employment mediator should have a sense of what juries do with cases, including the ranges of damage awards that will be given if the case goes to trial and results in a finding of liability.

Lawyers in employment cases are required to pivot from their adversarial role as advocates to their counseling role as the process continues. The mediator should stand ready to assist counsel where that may be needed to persuade a client to do what is in the client’s interest, as well as inspiring the attorneys to act in accordance with the high standards of the profession despite the enmity that may exist between the clients.

The usual process for an employment mediation begins with an opening session, in which the parties set forth the basis for their respective views of the controversy. It can be important to have this dialogue, as sometimes clients will not fully grasp what is obvious to the lawyers without hearing the opposing view of the case. At the same time, the opening session must be kept under control lest venting begets new resentments and sets the process back. Generally it is better to have an exchange, as without it, neither side will understand the initial offers that they get from the other side as reflecting a genuinely held view of the case.

After the opening session, the back-and-forth process generally involves swapping information pertaining to the merits and power realities of the negotiation and delivery of offers and counter-offers. During this process, the parties begin to discern what may be required to reach an agreement.

As the prospect of settlement becomes more real, the benefits of doing so often become more apparent and positions moderate. At the same time, either or both sides may be framing the problem in a way that makes compromise difficult, or may have an unrealistic assessment of the realities they are facing. If necessary, but only if necessary, a good mediator will gently intervene.

The mediator’s function is to preside over this process in a completely neutral way, attempting to understand each perspective fully in order to be able to engage with it; to communicate effectively; to inspire confidence and persistence; to ensure that people think through their decisions; to reframe choices in a way that makes the risks and options people face clear; and to act as a “dutch uncle” where needed.

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