Mediation is a
process available to parties who voluntarily consent to resolve
a dispute with the assistance of a mediator. The dispute or
conflict may occur in the workplace, between parties in a
contractual relationship or between members in a family.
Confidentiality is a critical element in mediation. The process
itself is confidential which mean discussions in mediation
cannot be introduced into evidence in arbitration or a court of
competent jurisdiction. Confidentiality promotes dialogue among
parties who otherwise would withhold information in fear of
reprisal from management. Confidentiality encourages parties to
disclose the truth restricting discussions among participants in
mediation. The mediator will ensure power is equally balanced
among participants in mediation particularly workplace issues.
The participants often include managers and executives in
addition to the employer representative with authority to enter
into a settlement agreement. It is critical all parties realize
their job title or status is not a factor in mediation. The
mediator will not permit one party to intimidate another in
mediation. At some point in the mediation disclosure will have a
calming affect on the parties. It will most likely occur when
parties realize they are in a relaxed and comfortable
environment where information discussed remains confidential.
When a dispute occurs in the
workplace or between parties in a contractual relationship and the parties begin
to realize continued discussions exacerbates one or the other personally, that
is a good indication to seek the assistance of a professional mediator. An
employee is reluctant to inform management she or he has a dispute or conflict
with another manager in fear of reprisal. Most managers and supervisors do not
want or may not have time to respond to disputes or conflict. They often ignore
the conflict and advise the parties to resolve the matter themselves. Some
employers incorporate mediation as a condition of employment anticipating
employer and employee conflict. Mediation is often the initial step in an
employer’s internal employee complaint process. Parties in contractual
relationship incorporate mediation as a provision of the contract in the event
of a breach. In either situation parties at that point should select a mediator
to assist them resolve their dispute. A neutral party, i.e., a professional
mediator has the time, is in a better position than the parties to proffer
suggestions and recommendations to resolve differences due to the levels of
sensitivity and emotionalism parties bring to an issue(s).
Let’s use the workplace as our
example. If an employee is in a dispute with management she or he may be
required to raise the issue with management via its Human Resources (HR) or EEO
department as the initial step in the employer’s internal complaint process. In
order to provide a broader perspective of mediation the employer in our example
dislikes mediation and entrusts its Human Resources department to investigate
and resolve the employee’s dispute. The employee perceives a conflict of
interest in the employer’s complaint process specifically the HR department and
management. So the employee decides to find a mediator. There are three critical
elements you should look for in a professional mediator: impartiality, fairness,
and integrity. The employee surfaces the internet for mediators and
organizations, i.e., Association for Conflict Resolution (ACR), Southern
California Mediation Association (SCMA) and, the Strauss Institute for Dispute
Resolution (SIDR), etc., and personal referrals. The objective in mediation is
settlement. If the parties have a substantial role in reaching settlement they
are more likely to adhere to its provisions. You should consider the experience
the mediator has with your issue. Our example is an employment issue but do not
rule out a professional mediator has the ability to mediate other issues. You
should consider the number of mediations the mediator held and review her or his
resume. The search for a mediator is synonymous to searching for an attorney or
law firm. An attorney or law firm normally has personal contacts with mediators
who have conducted mediation with them. When searching for a mediator remember
an attorney is trained to be adversarial when representing their client and the
fee may be a matter of consideration. Ultimately the employee will make her
selection.
The employee selects a mediator
and files her complaint with HR. Afterwards the mediator extends an invitation
on behalf of the employee requesting the employer to participate in mediation.
If you recall in our example the employer is anti-mediation and does not have a
high regard for mediators. The employer’s attorney declines. When an employee
files an internal complaint and subsequently invites management to participate
in mediation management should genuinely consider the invitation as an
opportunity to resolve the employee’s issue(s). The invitation represents the
employee’s desire to discuss the matter and creates an opportunity the parties
otherwise would not have in the early phase of the employer’s complaint process.
The mediation would have been held in a neutral place usually the mediator’s
office. The process would not have disrupted the workplace or employee
productivity. Attorneys often dismiss an employee’s invitation to mediate on
the premise no official claim has been filed with a federal or state law
enforcement agency or in a court of competent jurisdiction. The attorney
dismisses an opportunity for management’s early intervention and resolution of a
dispute and a chance to avoid litigation. After the employer completes its
internal process the employee can file her employment complaint with a federal
or state law enforcement agency. As soon as the employee receives a “Right to
Sue Notice” she can file her claim in state or federal district court. The
employer’s attorneys’ decision has placed the parties in a protracted and costly
litigation forum where essentially no one will win but one shall prevail.
In the example above the
employer overlooked a priority an endeavor to work through a suppressed economy
in an economic recession. In that regard the employer has an obligation to its
investors, stakeholders and, customers to consider alternative concepts with
minimal risks such as mediation to cut costs. In a sluggish economy the first
reaction is to cut costs. If you read our previous article you may recall we
recommended mediation in lieu of litigation to substantially cut an employer’s
costs.
Some of you have experienced
mediation others have not. Of those with experience their evaluation of the
process is often skewed with unrealistic personal expectations and
unsubstantiated comments. For example; employers challenged the proposition, the
mediation process is less expensive than litigation even when it is soundly
repudiated. In those situations I found that time, fees, costs and the overall
procedure of the two processes were not comprehensively compared and evaluated
to equitably refute the proposition. Some employers state the only way of
reaching a resolution using mediation is through a monetary settlement. That is
an inaccurate and grossly over stated proposition. Even if the statement was
accurate when the cost and fees incurred in preparation for litigation is
compared with the fees and costs of preparation for mediation it is well known
to reach settlement litigation requires a longer period of time and is much more
expensive than the mediation process. There is documented evidence of a high
number of resolutions using mediation that did not require monetary settlements.
Damages having a direct corollary with the issue(s) in dispute usually determine
whether a monetary amount is a component in the settlement. Some employers dub
mediation a “rip off” or a method employees use to extort money from their
employers. Statistical data provided by many organizations that use mediation to
settle disputes or conflict soundly refute such a characteristic of the
mediation process. Some employers state they would rather fight to the “end”
than pay for something it did not do. Simply stated an employer would rather
stand on “principal” rather than take a practical approach and settle a matter.
Of course that is a right of any employer to make that decision.
An example of a stand on
principal; an employer’s management consultant took over managing the employer’s
employees. The consultant terminated 24 of the employer’s employees and hired 24
new employees of different ethnicity to fill the same jobs. The twenty-four (24)
employees filed an employment discrimination class action law suit with a
federal law enforcement agency (EEOC) against the employer. Approximately four
years later attorneys representing the employer decided it was in the employer’s
best interest to settle the matter and avoid expensive litigation costs that may
lead to more job losses. However, attorneys for the employer stated there is
absolutely no merit to the claims and settled the matter for $500,000.00. The
terms of the settlement require the employer to abide by a three-year consent
decree that include policy changes such as setting hiring goals for Latino
workers, anti-discrimination training for employees and hiring a consultant to
monitor its progress. Keep in mind there was no discussion of attorney fees,
four years litigation costs or time lost from a disruptive workplace or the
negative headlines that appeared in the newspaper about the company and its
employment issues. In our present economy or otherwise do you believe this was
the best way to handle this matter considering the costs? Settlement should have
been much earlier and costs would have been much less. The employer would have
avoided litigation costs and a consent decree in a case that has no merit.
If you are interested in
learning more about mediation or if you have questions visit our website: or
accept my invitation to discuss the matter over lunch at the Business Forum.
Thomas R. Watkins
is a Fellow of The Business Forum Institute and the Principal of Thomas Resolutions. He is a licensed Mediator (City
of Los Angeles), Certified Arbitrator, Mediator, Settlement Officer
(Los Angeles Superior and Municipal Courts), Certified Advanced
Practitioner Employment Mediator ACR (Association for Conflict
Resolution), Certified Mediator and Arbitrator with FINRA (Financial
Industry Regulatory Authority). He holds a BS degree and MPA Degree
in Public Administration, from the University of California
Dominguez Hills. Thomas studied law at William Mitchell College of
Law in St. Paul, Minnesota and is a member of the Los Angeles County
Bar Association. He has held a number of positions with the Federal
Government, most notably with the United States Equal Employment
Opportunity Commission. He is President of the Association for
Conflict Resolution LA (ACR-LA). He is currently serving his second
term as President of the ACR Los Angeles Chapter, and is a former
member of the National Advisory Council.
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