ADR & MEDIATION

Employment Mediations Really Are Different!

January 2014

By NH Mediator Charles P. Bauer*

Mediation from the Employee/Plaintiff Prospective

Employment mediations are different for Employees/Plaintiffs because of the (1) high emotion, (2) personal integrity, and (3) financial considerations — compared to other types of mediation claims.

Employment mediations must be conducted with many different issues in mind:

1. To be fired, terminated, demoted, ridiculed, bullied, disciplined, or harassed in the workplace is devastating to an Employee/Plaintiff and family — financially, physically, and emotionally.

2. A job is one of the most important aspects of any person and family. Employment provides not only financial support — but oftentimes “defines a person.” An Employee/Plaintiff’s “sense of well-being” is oftentimes shaken.

3. Oftentimes, integrity and honestly are attacked. Workplace accusations are insulting and demeaning to employees.

4. Employees/Plaintiffs are fighting not only for their employment benefits (money, insurance, responsibilities) — they are also “fighting for their name and integrity.”

5. Some wronged Employees/Plaintiffs are also fighting for other employees — “I don’t want this to happen to anyone else.”

6. The employment relationship went from “great to horrible” — someone is responsible.

7. Not only has the Employee/Plaintiff suffered a private personal injury, oftentimes the wrong/injury is publicly known in the community/industry.

8. Some Employees/Plaintiffs are bad employees — work performance is subpar or employment behavior or relationships with others is subpar — yet, there may or may not be liability for the workplace action.

9. Oftentimes other employees (present and former) side-up “with or against” the Employee/Plaintiff or Employer/Defendant.

10. Indirect information/evidence is usually present in the form of prior employment, medical records, resumes, personal circumstances (divorce, separation, problem children, pre-existing medical or emotional conditions).

11. Litigation resources may be limited compared to Employer/Defendant/Insurance Company.

12. Employee/Plaintiff has only “one shot at correcting the wrong” — Employer/Defendant/Insurance Company will most likely survive for another day.

13. Mitigation - Employee/Plaintiff needs to mitigate — find alternative employment.

14. Courts — especially the Federal Court — often grant summary judgment in employment cases for Employer/Defendant. However, juries are comprised of “employees” — not employers.

15. Federal taxes, Liens and Attorney’s fees and Costs take a bite out of settlements/awards (i.e. Department of Employment Security, worker’s compensation, medical providers, loans from others).

Mediation the Employer/Defendant Prospective

Employment mediations are different for Employers/Defendants because of the (1) prior business decisions, (2) anger and hostility, and (3) financial considerations – compared to other types of mediation claims.

Employment mediations must be conducted with many different issues in mind:

1. If there has been a termination or demotion, there is oftentimes a need to “justify” the employment decision. Sometimes, intermediate supervisors need/want to “save face” with the employment decisions against the Employee/Plaintiff.

2. Oftentimes the prior employment decision-makers (supervisors, bosses, owners) are the ones in the mediation room who are making the decisions whether to settle or not.

3. If the claim involves discrimination, retaliation, or the like, Employers/Defendants want to defend their “good name.”

4. Employers/Defendants don’t want to pay “bad employees with false allegations.”

5. Sometimes there is insurance coverage — sometimes there is not. Even with insurance coverage, oftentimes there are high deductibles and/or consent clauses for settlement.

6. If there is no insurance, cash from the business may be a problem (i.e. periodic payments, or worse, bankruptcy).

7. Employers/Defendants who get sued are oftentimes “angry” at the former Employee/Plaintiff and hostile toward their counsel.

8. An individual Employer/Defendant may be insulted by the lawsuit or claim and wants to defend his/her integrity, honesty, and reputation.

9. There are often “former employees” who don’t like the Employer/Defendant and want to get the employer back for a perceived wrong.

10. Sometimes even current employees will side with the former Employee/Plaintiff.

11. Supporting employees may not be available or no longer with the company.

12. Company policies, practices, and procedures may be lacking (handbooks, internal memos).

13. Problematic emails and other electronic data — exist or doesn’t exist; they may be expense to retain and obtain.

14. Confidential business information may cause discovery/legal battles.

15. Lack of documentation may be a problem (lack of evaluations, memos to file, discipline, etc.). In real estate, it is “location, location, location.” In employment law, it is “documentation, documentation, documentation.”

* Charles P. Bauer is licensed to practice in New Hampshire.

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Charlie Bauer
You may contact
Charlie Bauer at 603-545-3651.

See also:
Employment Mediation Best Practices