When a dispute arises between an employer and employee, there may be ways to handle the problem other than the traditional path of investigation and litigation. Alternative dispute resolution (ADR) offers a way to resolve the issues between the parties without the high costs of the investigation and litigation approach. ADR options include:
- Mediation: A neutral third party helps the disputing parties reach an agreement together;
- Arbitration: A neutral party or group of parties render a decision after hearing both sides to a dispute;
- Collaborative Law: Lawyers representing both sides achieve a settlement through negotiation rather than litigation. The parties agree to resolve their dispute in this manner and to forego lawsuits;
- Negotiation: The parties conduct discussions themselves informally to reach an agreement.
What Is Employment Law Mediation?
In mediation, a neutral, third-party, known as a “mediator”, is designated to help the disputing parties resolve their dispute in an informal and confidential process. The neutral party does not tell the parties what to do, but rather helps the parties discuss their opposing claims or issues. The mediator offers a path to resolving these issues by mutual agreement.
Mediation is sometimes voluntary – meaning that neither party is forced to mediate. However, some employment contracts, employee handbooks or union collective bargaining agreements may require mediation, at least as a first step in resolving a dispute about the contract or bargaining agreement. Or, a court, administrative agency or a government agency might require mediation as part of its dispute resolution process.
When parties are required to mediate by a contract, court or government agency, they are expected to participate in good faith. A representative of each party must attend the mediation. This person must have knowledge of the facts, so they can discuss the situation knowledgeably. They must also possess full authority to enter into a settlement. However, as in every mediation, the mediator is not empowered to impose a settlement on the parties to which they do not agree or make any binding findings of fact that would lock the parties in.
Mediators are trained, have experience with conflict resolution and usually offer the following:
- They facilitate a positive environment where both parties can communicate freely in a respectful manner;
- They assist the parties in uncovering the facts and details underlying the dispute or at the heart of the problem;
- They ensure that both parties are heard and all of their issues are addressed; and
- They offer traditional, new, or creative solutions to the parties for resolving the dispute. In other words, they are not limited by traditional remedies available in civil lawsuits.
Mediation is sometimes seen as advantageous, because it gives the parties the opportunity to speak directly to each other and have their competing perspectives on an issue heard. In addition, because mediation is confidential, it avoids publicity which one or both sides may wish to avoid. Both the process and any agreement reached is confidential.
What Types of Claims Can Be Mediated?
Any employment issue has the potential to be mediated if both sides are willing to resolve it together through dialogue and discussion. Common claims that are mediated include:
What Is Employment Law Mediation with the EEOC?
The federal Equal Employment Opportunity Commission (EEOC) has a free mediation program for resolving employment disputes that relating discrimination or harassment claims made pursuant to Title VII of the Civil Rights Act. After a person files a claim of discrimination with the EEOC, the EEOC offers mediation as an option to resolve the complaint before a full investigation is conducted.
The parties to a claim of discrimination do not have to wait to be invited to mediate the claim by the EEOC. Either party to a discrimination complaint can apply for mediation. The parties to a medication are allowed to be represented by their attorneys, if they wish, although a person with knowledge of the situation at the root of the dispute must also be present. There is no cost to participate in the EEOC mediation program, and many participants report that they have had a positive experience with the mediation option.
If a favorable resolution is not reached in mediation, the investigation into the complaint continues, so there is no risk of the claimant losing their right to an investigation of the discrimination claim if they mediate first without results.
How Long Can Employment Mediation Take?
Mediation is far more efficient than investigating and prosecuting a lawsuit. Most mediation cases can achieve a complete resolution within 3 months of submission of the request for mediation being made. According to the EEOC, most employment cases mediated with their agency take only 3 to 4 hours to reach an agreement.
Investigation and lawsuits can literally take years to resolve. Costs and attorney’s fees can amount to thousands, if not tens of thousands of dollars.
What Happens If a Dispute Cannot Be Resolved with Mediation?
If the parties cannot resolve their dispute through mediation, either party may choose another action:
- Some employment contracts contain provisions that require disputes to be handled through a court of arbitration;
- The EEOC usually requires that complaints regarding discrimination in the workplace be filed with the EEOC within a particular period of time. The EEOC then opens an investigation into the complaint. The investigation continues should EEOC mediation not work out, just as with any other complaint;
- Either party can hire an attorney to pursue a settlement, but usually a settlement is achievable only on the basis of a lawsuit;
- The parties to any dispute can always try to resolve their dispute on their own through negotiation without any outside oversight or participation;
- Either party is free to pursue a remedy for their claim in a court of law by filing a lawsuit. However, again, investigations and lawsuits typically take years to reach a final resolution. Nonetheless, often settlement cannot be achieved without the threat of a trial taking place at some point.
Are There Any Disadvantages to Employment Law Mediation?
If any of the parties to an employment dispute are not committed to resolving the dispute by compromising and finding a mutually agreeable resolution, then mediation may be a waste of time. If one or both parties is rigid and unwilling to compromise through a process of give and take, then mediation is not likely to succeed.
Generally, mediation is a good start towards resolution, if both parties truly want a speedy resolution. This is especially true if the mediator takes into consideration both parties’ concerns, so that a cooperative relationship can exist after a dispute. Because mediation is cost effective and confidential, there is little risk to attempting mediation before pursuing other options.
Do I Need an Employment Lawyer for Mediating an Employment Dispute?
It can always help to consult a workplace lawyer for help in understanding the law that applies to a particular issue. A lawyer can always give a person an evaluation of the merits of their claim and let them know if they have a strong case worth pursuing or not. Getting this information before a person participates in a mediation may help a person reach a resolution. It is always helpful to get an objective assessment of a claim and learn about the various legal options for addressing it. It also helps to know what outcomes are most probable.
In addition, a person may feel that they are not best-equipped to represent their side in a dispute and may want an experienced professional lawyer to handle it for them, whether it is a mediation, an arbitration or a legal proceeding in court.
