Mediation
What Happens in a Mediation?
Disputes often arise between an employer and a discharged employee who contends he or she was wrongfully discharged. The employee retains an attorney who contacts the employer. After each side considers the cost of litigation, there may be an agreement to utilize mediation prior to litigation. A mediator is jointly retained and a written agreement entered into by which the mediation shall be conducted. All participants must agree that all statements made in connection with the mediation are confidential and may not be used in any litigation. From that point forward, the mediator orchestrates the mediation.
The mediator obtains such information and documentation as the mediator needs from each party to understanding the dispute. A mediation conference is promptly set - set for the express purpose of resolving the dispute. The conference is informal,
taking place at the mediator's office or other neutral site. At the conference, the mediator meets with the parties and their counsel, jointly and separately, sometimes shuttling between two conference rooms, for one purpose only - to bring the parties into agreement. It is at the conference that the mediator's special skills come into play.
The mediator, now familiar with the individuals involved and the particulars of the dispute, utilizes communication skills, knowledge of employment law, and persuasion to bring the parties together. Often the employer is not be willing to rehire the employee, but wants to avoid the cost of fighting a lawsuit which it might not win. While the employee's counsel may have demanded that the employee be reinstated, the employee may be more interested in obtaining a good recommendation and enough money to carry him or her over to the next job. The mediator can inquire into and discuss these areas in confidence with both sides - something adversarial parties cannot freely do for fear of giving the opponent an advantage. The mediator, thus informed, can guide the parties to the settlement they likely could not reach on their own. For example, the employer agrees to give some severance pay and a letter of recommendation in exchange for the employee's release of all possible claims arising from the termination. The dispute is resolved in a month - as opposed to being litigated for four years at a cost fifty times greater than the amount of severance pay.
If the parties are far apart, the mediator may seek to identify and establish limited areas of agreement from which to build toward ultimate agreement on the larger disputes. For example, the parties might agree on what the employer owes the
discharged employee for accrued sick pay, or they may agree on some other sub-issue. From that limited agreement can come a later full settlement.
There is no set procedure or prescription for a mediation. The mediator creates and implements the right procedure for the dispute at hand - one that works. The only completely necessary ingredient is the will of the parties to give it a try.
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