Employee Dispute Mediation: Better than Litigation When it Works

Posted on Monday, February 11, 2019

Mediation is a confidential and informal process intended to help people to settle disputes with the help of a neutral and professionally trained mediator. Typical cases involve discrimination claims, and disputes surrounding pay, perceived retaliation for employee actions, Workers' Compensation or termination.

EEOC Mediation

An independent survey listed on the EEOC website shows 96 percent of all respondents and 91 percent of all charging parties who used EEOC mediation would use it again if offered.

Here are remarks from two employers who used EEOC mediation, posted on the EEOC website:

Employer 1: Once the employer gets past the myth of "If we didn't do anything wrong, we shouldn't go to mediation" and decides to participate, the real issues in the dispute become clear. Through mediation, we have had the opportunity to proactively resolve issues and avoid potential charges in the future. We have seen the number of charges filed with EEOC against us actually decline. We believe that our participating in mediation and listening to employees' concerns has contributed to that decline."
Employer 2: "Regardless of the issue or whether it has merit under Title VII, if it is draining resources, weighing on the mind of the employee or having a negative impact on productivity, then getting the issue out on the table, mediating it and resolving it is often the smartest and most expeditious way to ensure workforce effectiveness."

"My role is not to decide who is right and wrong," explained one mediator. "My goal is to see if we can resolve the issue without all-out war."

Unlike binding arbitration -- which is another alternative dispute resolution mechanism -- if mediation fails the parties can take their dispute to another level, such as the courts or arbitration if arbitration is provided for in the particular case.

Bringing in a mediator promptly can be of value to a company for these reasons:

Benefits of Mediation

Minor issues can be nipped in the bud before they become litigation and disrupt the employer-employee relationship.

Mediation can convey to all employees that you are willing to listen to and resolve their concerns, thereby reducing the inclination of an employee to talk to an attorney. Attorneys may exaggerate the employee's prospects for a big payoff in order to land the client.

The process is far less expensive than other dispute resolution mechanisms.

Mediation can give you insights about potential problem areas within the company.

Simple miscommunication is at the root of many  disputes that mediators help to resolve. A personality dispute can sometimes spin out of control.

Mediation opens the door to non-monetary solutions. For example, in one instance, mediation led to a decision to describe an employee's departure not as a termination, as the employer had originally intended, but instead a consequence of a reorganization, improving the former employee's prospects for being hired elsewhere. Mediation can also result in a reversal of a decision to terminate the employee, or an agreement to give a positive or neutral reference.

Cash Settlements are Common

More typically, however, a financial settlement is involved. Many employers approach mediation with an expectation of making a cash offer to resolve the dispute. Typically the amount is less than the employee is seeking (and a tiny fraction of the cost of litigation), but the mediator can convey to the employee that his or her prospects for a large settlement may be limited.

At the same time, the mediator may convey to the employer that offering too little -- even if the employer does not believe the employee has a case to stand on -- could be rejected out of hand and lead to a stalemate.

If an employee files a discrimination complaint with the Equal Employment Opportunity Commission (EEOC), the Commission may propose mediation instead of litigation -- a service it provides without charge. Also, if a dispute has already been taken to court, the court may direct the parties to use a mediator before the court is willing to hear the case.

Alert Employees to the Option

Since the goal of mediation is to avoid having disputes filed with the EEOC or in court, employees must be aware of the option of mediation. A statement about mediation in the employee handbook can alert them to that possibility. The statement could essentially say, "We understand that from time to time issues arise in the employment relationship. When it cannot be resolved by the employee and supervisor, we encourage the use of mediation." That would be followed by an explanation of how the process works.

A typical mediation session may last four to six hours, although some can run longer. The cost of private mediation services, on an hourly basis, may be equivalent or slightly less expensive than hourly rates charged by attorneys -- particularly if the mediators are in fact attorneys. Often, both parties agree to split the cost at the outset. However, an employer may decide to pay the entire fee as part of the resolution.

Discussions during a mediation session are considered strictly private and comments or offers made during mediation are not admissible as evidence in court, should a failure to mediate lead to this. In some mediation sessions, all notes taken are shredded before the parties leave the room. Nevertheless, employers can gain insights on an employee's position that could be helpful if the dispute is taken to court.

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Disclaimer: The information contained in Dulin, Ward & DeWald’s blog is provided for general educational purposes only and should not be construed as financial or legal advice on any subject matter. Before taking any action based on this information, we strongly encourage you to consult competent legal, accounting or other professional advice about your specific situation. Questions on blog posts may be submitted to your DWD representative.