By Charles P. Bauer*
Emotion and Employment Disputes. Employment disputes are fraught with emotion, expense, and uncertainty for employees and employers. Disputes can be resolved by litigation, wherein decision-making authority is abdicated by the employee and employer to relatively disinterested third parties — judge, jury, or appeals court.
Whereas, mediation of employment disputes allows the employee and employer to retain certain levels of choice, control, and conclusion over the emotion, expense, and uncertainty features of employment disputes. As a general principle, parties to employment disputes should consider resolution first through mediation – and then litigation.
Benefits of Mediation. Mediation is an agreed-upon process, managed by an independent mediator (chosen by the parties), who facilitates the employer and employee to reach their own resolution of the dispute by agreement.
Alternative dispute resolution (ADR) is less expensive and less time-consuming than litigation; has simpler procedural and substantive rules than litigation; is less hostile and emotionally charged than litigation; and is more flexible in scheduling than litigation.
The key difference between litigation (or arbitration) and mediation is that in mediation, the parties retain the decision-making power to reach their own resolution, oftentimes utilizing remedies and relief that are not available to the parties in litigation.
Choose the Right Mediator. To increase the likelihood of efficient resolution, a mediator who has substantive knowledge of the subject matter should be considered. Selection of an appropriate and trained mediator is particularly important when the parties’ personalities and other characteristics involved in the dispute are considered. For example, an emotionally charged plaintiff may require an especially compassionate mediator; whereas, a tough-minded corporate defendant may require a mediator who has had prior business experience representing and defending employment matters.
Location of Mediation. Location of the mediation is an important consideration. Selecting a neutral location is oftentimes best, but in some instances, special considerations must be given to the delicate balance between the plaintiff and defendant.
When to Mediate. Timing of the mediation is important. Sufficient facts must be identified and developed, but significant expenses must be taken into consideration. Whether to mediate before, during, or after depositions, independent medical examinations, or expert disclosures are all issues that need to be carefully considered.
Who Should be at the Mediation. Clients should be prepared for mediation. The process of negotiation, compromise, and bargaining should be discussed and explained to the client prior to the mediation session. All individuals who have a significant impact on the decision-making process should be at the mediation, or at the very least, be readily available by videoconference, telephone, or e-mail.
Economic Terms — Money and Taxes. Be aware of tax implications of employment resolutions. Be clear on all settlement issues. Discuss and understand all “boiler plate” terms and conditions of settlement agreements, including tax language, indemnification language, non-admission language, confidentiality language, and dispute-resolution language.
Non-Economic Terms. Careful consideration should be given to non-economic items as part of the settlement of employment disputes which oftentimes are not available through litigation, such as letters of recommendation; handling personnel files; designating a spokesperson for references or inquiries; non-compete language; no re-apply language; joint press release language; money paid over time; outplacement services; sensitivity training; regret or apology language; charitable contributions; structured settlement or annuities; and scholarships or trusts, and others.
Impasse. If an impasse occurs at the end of the mediation, serious consideration should be given to continued mediation after more discovery; a mediator’s proposal; or an agreement to arbitrate.
ADR resolution involves preparation, thought, courtesy, decency, respect, and reasoned exchange of information. “Rambo” tactics, “scorch the earth” advocacy, cut-throat techniques, and “slash and burn” conduct rarely produce resolution through the ADR process.
Seven (7) Deadly Errors in Employment Mediation
When parties, counsel, and employment disputes warrant sophisticated methods of mediation, mediators may use a combination of methods to assist the parties in reaching resolution. There are generally 3 types of mediation: facilitative; evaluative; and transformative.
The facilitative method of mediation is one in which the mediator does not make recommendations to the parties or give his/her own advice or opinions as to what a court may or may not do with a particular issue or matter. The facilitative approach permits the mediator to assist the parties in reaching an agreeable solution by asking questions, validating points of view, searching out interests, and assisting the parties in finding and analyzing their own options and solutions. Ordinarily, the facilitative mediation is used where a mediator has no substantive expertise concerning the area of the dispute.
The evaluative approach to mediation is one in which the mediator offers his/her opinions and advice about the problems, evidence, and likely outcome of the matter before a judge or jury, and may suggest reasonable settlement terms to assist the parties in reaching resolution. In the evaluative mediation, the mediator oftentimes points out weaknesses in the case during private sessions, and evaluates what a judge or jury is likely to do, and makes formal or informal recommendations during the process of mediation. Mediators must have experience and knowledge, of course, and have the confidence of the parties, to be effective in evaluative mediation. Most mediators employ the evaluative type mediation when the parties no longer have a continuing employment relationship.
In transformative mediation, the emphasis is on improving communication and transferring information so that the parties may transform their relationships as a result of mediation. In employment disputes, the transformative approach of mediation is often useful if there is an on-going employment relationship between the parties.
Charles Bauer is selected for inclusion in The Best Lawyers in America® 2011in the areas of Mediation and Arbitration.
* Charles P. Bauer is licensed to practice in New Hampshire.
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