Employment Mediation is a Dispute Resolution Process that Effects Positive Workplace Change.
Most of what is unfair in the workplace is not unlawful. That’s a concept that employees and employers alike often fail to understand. Educating the workforce, so that employees understand the reasoning behind certain decisions, and treating people fairly and with dignity go a long way to avoiding workplace disputes. That is not to say that workplace disputes can always be avoided. But they can be addressed early on before the parties incur significant expenses and become entrenched in positional negotiating or heightened emotional responses to conflict.
One way to facilitate dispute resolution before litigation is to recognize it and deal with it. This proposition seems obvious, but it is the opposite of how many organizations react to the dispute. Instead of opening dialogue with a disgruntled employee, the company calls its lawyer, who counsels them to gather information and engage in actions — like interviewing co-workers — that may actually create more conflict. The litigation approach is very different than one focused on mediation, where open dialogue is key. The “disconnect” here is that calling a mediator first may avoid the costs of litigation later or, at least, minimize those costs by initiating the dialogue needed to resolve the dispute at the outset of the controversy.
Mediation Saves Time, Legal Fees and Emotional Energy.
Mediation is more cost-effective than litigation in terms of time and money spent. But the “soft” benefits of employment mediation are often the most beneficial ones. Mediation helps to maintain and repair relationships and assists in creative problem-solving without the constraints of litigation and judicial remedies. Because mediation is self-directed, the parties may adopt solutions to resolve a controversy that are not available to a judge or arbitrator. The dispute and its resolution also remains confidential throughout the mediation process. This is a benefit to employer and employee alike and avoids the disclosure or dissemination of private or sensitive information.
Workplace Disputes Particularly Appropriate for Mediation.
While mediation may be used to help resolve any type of workplace dispute, it is particularly helpful to resolve the following types of employment disputes, where the parties have an ongoing relationship or each have an interest in the early resolution of the controversy:
- Claims involving private or sensitive information, such as sexual harassment, gender identity and disability claims, or confidential matters, such as resolving an impasse in negotiating the exit of a key executive or manager;
- Reasonable accommodation issues, where the employer and employee may struggle to find constructive and cost-effective ways to accommodate disabled employees;
- Discharge issues, where emotions are high and there is a potential colorable claim;
- Discrimination or retaliation cases, where the employee and employer have an ongoing relationship;
- Post-employment restrictive covenant issues, where the employer is concerned with protecting proprietary and other confidential information and the employee wants closure and definition as to what he or she can or can’t do in future employment relationships; and
- Wage-hour claims, by far the fastest-growing area of employment litigation, where the damages tend to be finite and readily calculable. Although wage-hour claims typically start out small, they have a tendency to morph into wage-hour audits conducted by the Department of Labor or class or collective actions, in part, because of economies of scale.