Employment Disputes are on the Rise. The Results? More Resolution. The Reason? Mediation.

Unfortunately, conflict at the workplace has always been and will always be. Fortunately, over the past twenty years, employment law has progressed in efficiency and availability to help protect employees and employers. Today, employment conflict can find resolution outside of the courtroom by means of mediation, a form of Alternative Dispute Resolution (ADR) that creates a space for quick and impactful negotiation between parties utilizing a neutral third party (mediator), often-times an experienced attorney, to support the process of reaching a mutually acceptable resolution.

Why Mediation?

The use of mediation to help resolve an employment law dispute is not uncommon. Parties can use mediation to resolve disputes like discrimination and wrongful termination. In many cases, mediation can prove beneficial for both parties as it often results in a timely resolution that is less costly than traditional litigation. The process also allows for an employee that feels he or she was wronged to have an opportunity to address the alleged wrongdoing while giving both parties control to craft a resolution that is to the specific issue at hand. In contrast, litigation results in a decision fashioned by the court or jury.

What does Employment Mediation Look Like?

Perhaps the biggest advantage of employment mediation is efficiency. Not only is an employment mediation much more economical than full-blown litigation, it also provides the parties access to the express lane of resolution. Whereas litigation can be an all-consuming endeavor for both employee and employer-and can last years-mediation is a relatively quick process that typically results in resolution in a much shorter timeframe.

An experienced mediator establishes a time for each party involved in the conflict to set forth their position to a neutral third party. Litigation is founded upon conflict, mediation is built on the idea of civil communication, negotiation, and an agreed-upon resolution.

Mediation also puts the power in the hands and sensibilities of those involved rather than in the tight-restraints of the court or jury.

Common Errors during Mediation

Those who are beginning the mediation process can benefit from a basic understanding of common errors. Parties can increase the chances of a successful resolution by avoiding these errors:

  • Lack of preparation. Although mediation is not as formal as traditional litigation, the parties should still prepare for the negotiations as they would any other hearing. Parties should bring key evidence, documents, records and witness testimonies to the meeting. It is also helpful to prepare a presentation for the mediator to bring the mediator up to date on the details of the conflict.
  • A failure to conduct the negotiations with good faith. Although the parties may not fully trust each other, they should conduct negotiations in good faith. This means parties should not change a demand or offer without proper justification and should communicate any expected settlement terms from the outset of negotiations. Settlement terms to discuss could include confidentially agreements or resolution of other potential claims.
  • An adversarial approach. Parties going through mediation rarely find success if they approach the process with an aggressive or hostile attitude. Avoid emotional pleas and focus on the facts.

It is also important to note that those who are going through mediation may wish to have legal representation or an experienced neutral to guide the process. An attorney experienced in these matters can help, better ensuring your rights are protected.

The legal team at Shepherd, Finkelman, Miller & Shah, LLP ("SFMS") has significant experience litigating employment matters. If you have any questions regarding this subject or this posting, please contact Nick Lussier ([email protected]) or Chiharu Sekino ([email protected]). We can also be reached toll-free at (866) 540-5505.

SFMS is a nationwide law firm with offices in California, Connecticut, Florida, New Jersey, New York, and Pennsylvania. SFMS is an active member of Integrated Advisory Group (www.iaginternational.org), which provides us with the ability to provide our clients access to excellent legal and accounting resources throughout the globe. For more information about SFMS, please visit us at www.sfmslaw.com.