Employee mediation is a great alternative to help companies resolve disputes quickly and avoid costly, time-consuming litigations. Parties may decide to mediate voluntarily or may be compelled to participate in mediation by an employment agreement, a court or an administrative agency.
Employment disputes tend to be more emotionally charged than typical commercial disputes because the claims generally involve the employee's livelihood, or the employee typically believes the employer acted unjustly. Mediation can help to deescalate participant’s emotions by encouraging open dialogue and understanding different perspectives. What are some best practices and key issues for parties and their counsel to consider when mediating employment disputes? Let discuss.
Decide to Mediate
Deciding to mediate is step one. You can typically recognize that employment disputes are often well suited for mediation because they are more personal and emotionally charged. Mediation may also be appropriate when the controversies are fact-intensive, frequently involving interpersonal and sometimes inflammatory allegations regarding incidents and conduct throughout the employment period.
The parties can also elect to participate in mediations if a complaint is brought before the Equal Employment Opportunity Commission (EEOC), through the EEOC's voluntary mediation program.
Choose the Mediation Forum
Mediations may be held in person or virtually. The specific methods used may also be determined based on an employee handbook, employee agreement, arbitration agreement or a court annexed mandatory mediation program.
Decide When to Mediate
Early mediation, before any formal charge or lawsuit is filed offers benefits such as efficiently addressing conflict, reducing costs for all participants, and avoiding participation in and the expense of formal proceedings, and litigation expenses including document production, depositions, and other discovery.
In other instances, a conflict may not be ripe for mediation. Mediating too early can undermine any potential of reaching efficient resolution outside of litigation. This is especially true when controversies involve the following:
- employee may not be emotionally ready to settle
- the employer may refuse "to pay a dime" to the employee and may be determined to fight the employee's claim "to the end”
- neither party may have a realistic view of the weakness in their positions
- an unsuccessful early mediation decreases the likelihood of mediation at a later stage that might be more productive
- the employer may perceive (rightfully or not) that a proposal to mediate communicates to the other side weakness or lack of confidence in its position.
Knowing when to mediate can be hard, working with legal counsel will help you decide the next best steps for your dispute.
Know Your Players
For the employer, depending on the size and nature of the business, potential candidates to participate may include in-house counsel, outside counsel, supervisor of the employee, department head whose budget is affected by a settlement, company owner, HR representative and insurance carrier representative (if applicable). The next important step in your mediation is deciding who should attend. First you will want to have a someone with sufficient knowledge of the relevant facts and full authority to negotiate a settlement. For an employee the likely attendees are the employee, their legal counsel (if chosen to have one), and if appropriate a relative or close friend who is instrumental to plaintiff's decision-making.
Lastly, you will want to select an effective employment mediator to engage in the mediation process.
If you need help navigating a mediation, contact Goosmann Law Firm at 402-280-7648. Or book a mediation now with Kelly Henry Turner https://outlook.office365.com/owa/calendar/KellyTurnerMediationBookings@goosmannlaw.com/bookings/