Why Companies Should Mediate Employment Disputes

Employment Dispute Mediation

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No matter how large or small a company is, there is one reliable fact of life: At some point, there will be a dispute between the company and one of its employees.  Most of the time, it is the employees who try to file a lawsuit against their employers for a different reasons.  These disputes come in many shapes and sizes: wrongful termination claims, sexual harassment claims, unsafe working condition claims.  Whether objectively true or perceived by an aggrieved and upset employee or former employee, these claims represent potentially costly and embarrassing public moments that can quickly erode a company’s assets in the form of attorney fees and potential settlement awards.

In almost every case, it is in the company’s interest to pursue a mediation solution when they come into conflict with an employee or former employee.  If nothing else, an attempt at mediation in order to avoid litigation on the part of the employees is a no-lose proposition for both sides, and should always be attempted.

The Downside of Litigation

Mediation can be a tremendous advantage to both parties.  For the company, they can often avoid not simply the cost of a litigation and possible settlement order, but also avoid the bad feelings and distrust that a lengthy lawsuit can engender not only between the company and the aggrieved employee, but between the company and all of its employees.  The rest of the staff will naturally feel some kinship with the aggrieved employee, and negativity generated by a lawsuit can infect the entire workforce.  Instead, mediation demonstrates a commitment to solving the problem in a friendly, non-aggressive manner.

The Upside of Mediation

In mediating employment issues, the situation can be better controlled.  This type of alternative dispute resolution is private, saving the public face of the company while a solution is sought.  It also avoids Discovery, which can often unearth more problems than anticipated.  Sometimes, as investigation turns up evidence of wrongdoing by managers or supervisors, the litigation unintentionally swells into something unmanageable.  In mediation, on the other hand, a good-faith effort can often resolve the dispute with a manageable expenditure and no public relations cost at all.

More importantly, mediation invites the employee into the process as an equal, setting the tone for negotiation that can often avoid punitive attempts to punish a company seen as unresponsive and defensive.

Mediation cannot, of course, solve all employee disputes, but it can help any company avoid turning a disgruntled employee’s complaint into a financial and public relations fiasco.

What To Look For In A Mediator

Look For In A Mediator

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There’s no doubt that mediation is often the best way to resolve legal disputes, particularly disputes in which it is important to maintain a relationship with the other party such as employment disputes, family disputes or child custody and co-parenting arrangements.  But with the wrong mediator facilitating the discussion, relationships could become even more strained than before, and a successful resolution might not be found. These situations almost always end in litigation, which is the very thing the parties in dispute attempted to avoid in the first place.

So how do you know how to choose the best mediator for the task? The first rule of thumb is to look for a mediator with extensive experience as an advocate in the field in which mediation is sought.  This means that if your dispute is in labor and employment, finding a mediator with extensive experience in that area will make a significant difference in the outcome of the mediation proceedings.  A mediator with experience in the area of your dispute means that he or she will be able to inform you of what a judge would likely rule if you took the case to court.  This knowledge and background information is an important piece of the puzzle to successful dispute resolution because it allows all parties involved to have a more realistic view of the situation and come closer to a compromise in the process.

The second most important trait to look for in a mediator is integrity.  While this trait might be harder to recognize than experience, integrity will usually show itself in a mediator’s activities and interests outside of the office.  Does he or she give back to the community?  Do others speak highly of him or her?  Finding a mediator with integrity means that your dispute will be handled with integrity—something that will be important to ensure fairness for everyone involved.

The third most important traits to look for in a mediator are creativity and innovation.  With creativity and innovation, a mediator can help clients look for solutions to their problems that are “out of the box”—something that could be valuable to the process, particularly if the parties reach a stalemate.

Finally, it is important to look for a mediator with an engaging personality.  Your mediator’s personality could make a significant difference in your level of comfort in the mediation session. Being comfortable means being able to open up and communicate freely—something that is absolutely necessary in mediation.