Employment Mediation: Process, Benefits, Preparation, and What to Expect

Employment mediation offers a faster, cost-effective alternative to litigation for resolving workplace disputes. Get the process, benefits, preparation steps, what to expect, possible outcomes, and mediator roles.

By Brad Nakase, Attorney

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Have a quick question? We answered nearly 2000 FAQs.

Table of Contents

1. Introduction

2. Employment mediation: What is it?

3. What are the Pros and Cons of Employment Mediation?

4. Can Anyone Serve as a Mediator?

5. Are the parties in a mediation obliged to follow the result?

6. How Do You Make a Mediation Request?

7. What Are the Best Times to Use Mediation?

8. What Kind of Preparation is Required for Mediation in Employment?

9. Who Must Attend a Mediation Regarding Employment?

10. Employment Mediation: Where Does It Take Place?

11. Process of Employment Mediation

12. Employment Mediation: Possible Outcomes

13. FAQs: Employment Mediation

Introduction

A lawsuit is a risky affair. It might also prove to be expensive and time-consuming. Owing to this, it would be more beneficial to all parties in a dispute to use the process of mediation as opposed to attending a court of law. Discussions would be facilitated by an impartial third party to assist all parties in reaching a mutually advantageous conclusion. Both the employer and the employee typically favor mediation when handling employment problems. Actually, federal employers are required to establish a plan for alternative conflict resolution, which frequently includes mediation.

Employment mediation: What is it?

Employment mediation is a process in which disputing parties engage in back-and-forth conversations under the direction of an impartial third party in order to resolve the matter at hand and discuss potential settlements in order to avoid escalation. Collective bargaining arrangements and employment contracts often stipulate that mediation must be tried in certain situations.

Additionally, the Equal Employment Opportunity Commission suggests mediation as a means of settling employment disputes. There is no legal authority behind mediation, and the mediator has no power to decide or enforce anything. It is merely a means by which individuals can express their positions on a conflict and come to a mutually beneficial conclusion. If the parties are unable to agree on a solution of this kind, they may choose to take additional action.

What are the Pros and Cons of Employment Mediation?

There are various reasons why Mediation is usually used as a first resort method of resolving conflicts.

Generally, mediation is a less expensive and quicker process than court litigation to resolve disputes.
It provides a level playing field to both parties and provides negotiators with space and freedom.
An honest and open exchange is made possible by secure interaction that is facilitated by an impartial third party.

Additionally, the material exchanged and statements made are unenforceable and often unacceptable in court should the mediation fail. The effort and funds invested in the mediation are forfeited, though, if the parties are unable to reach a settlement and the case is taken to trial.

Can Anyone Serve as a Mediator?

Mediators need to be impartial in the dispute. They must therefore have no financial or personal stake in the outcome. A government organization that selects its own mediator mediates a large number of employment-related disputes. A list of qualified mediators may be available for both sides to select from, depending on the circumstances. In general, mediators can be professionals with specialized education, such as lawyers and counselors. The employment mediator should possess an understanding of the issues and employment laws that exist.

Mediation of conflicts like employment conflicts is strained, emotional, and nasty. The mediators, therefore, should possess the stamina, patience, and communication ability that will persevere through the wrangles and enable an effective discussion that will result in the parties agreeing on a friendly compromise.

Are the parties in a mediation obliged to follow the result?

Where mediation fails to find a solution, the parties can choose to prepare a legally binding agreement and sign it. The parties are typically not governed by any remarks made during negotiation, though, if a settlement is not reached and the case is taken to court. Transcripts and other documents from the mediations must typically be turned over; nevertheless, the court may utilize them to inform its rulings. Data from the mediations may be included in or the basis for the ultimate court rulings that would be enforceable by law.

How Do You Make a Mediation Request?

The EEOC or the relevant state employment agency is the place to report workplace disputes and claims. These organizations may offer a mediator and assist in the process, and they usually suggest mediation as a means of resolving disputes. Although it is usually recommended, mediation is not always required. The parties can continue to ask for mediation even if the agency or department that is managing the dispute does not advise it. Some companies have their own method of setting up mediation and include it as the main conflict resolution technique in employment contracts.

What Are the Best Times to Use Mediation?

Although either party may request mediators at any time, it is typically advised to address an issue at the moment it is made. It may be stipulated in a contract of employment, included in a government agency’s grievance procedure, or even mandated by a court order. Mediation offers both parties the chance for a just and equitable resolution while reducing the expenses and time associated with a lawsuit. Mediation can occasionally take place during judicial processes in reaction to or in expectation of certain decisions and verdicts.

It is typically recommended that mediation be tried at least once in order to address concerns before they are brought before the courts, even if it doesn’t always provide the best answer for every dispute.

What Kind of Preparation is Required for Mediation in Employment?

Before a mediation can start, the following details must be decided:

Time and date availability
The mediation’s location
Who will mediate and who will be present at the mediation?
Cost sharing

Depending on who ordered or demanded that the mediation take place, these specifics might change. To make sure they and the individuals they represent are aware of their strengths and limitations, the lawyers for each side will go over the specifics of the case before the mediation begins. The lawyer will explain to the client most of the known possibilities, potential issues, and mediation results, including the risks involved in failing to reach a settlement.

After that, the lawyers will give the mediator statements in writing that include details about the case. They might also decide to give this statement—or a modified version of it—to one another. These claims could consist of:

Background information
Events in chronological order
Important details of the case
Relevant legal concerns
Status of the litigation
Prior settlement proposals or demands
Current offers and demands for settlement
Any significant proof

Who Must Attend a Mediation Regarding Employment?

The mediation ought to take place in front of the disputing parties. The ability to negotiate and reach a settlement should be granted to any agents of the parties who possess the necessary knowledge of the case’s circumstances. In some cases, it might not be the best idea to put the parties concerned in a space together because disagreements over jobs can be emotionally fraught. Employers may determine that the employee who is being accused of misconduct should not attend the mediation in order to preserve a cool, collected exchange.

Although it is not required, both parties are entitled to have legal representation during the mediation. The mediator decides how involved they will be in the process.

Employment Mediation: Where Does It Take Place?

The conditions under which the arbitration was requested usually dictate the place of a workplace mediation. When employers incorporate mediation into a contract of employment for future conflicts, they typically also specify the location of the mediation. The courts and government organizations will have specific venues for mediation. There are groups that offer support for alternative conflict resolution, such as the American Arbitration Association, for those organizing a private mediation.

Process of Employment Mediation

Not just during the mediation but also prior to it, the worker’s mediation process has phases and steps. There are roles for each participant.

1. Conference Prior to Mediation

The mediator is going to meet with both parties’ attorneys prior to the mediation. This pre-mediation conference’s goal is to collect and disseminate all the information required to carry out a successful and advantageous mediation. The mediator will answer any inquiries that either side may have at this meeting and go through the mediation procedure and the executed mediation agreement.

2. Meeting for Mediation

The mediator is going to meet with both sides and their lawyers after everything is ready. The representatives of the employer who are present during the employment claim mediations should have a clear understanding. The involved parties and the human resources staff must also have full knowledge of the case. It is also important to weigh the pros & cons of people being there, depending on the peculiarities of the case/situation. The employer can choose to exclude a person who has the potential to increase tensions and hinder negotiations/discussions.

Someone with the power to decide on the deal and sign any potential settlement agreement additionally needs to be present. In addition, the employer could want a representative from their insurance provider to be there.

Every party will give its perspective on the matter. After that, they may prefer to have a meeting in private and with the mediator to talk about the merits and demerits of their various positions. This would also help them to review and evaluate the settlement possibilities that they can easily afford and serve their best interests. This is possible because the mediator is able to facilitate less harsh communication between the parties and assist them in reaching the optimum outcome.

Employment Mediation: Possible Outcomes

A mediation can result in one of two things:

1. Settlement: A written agreement is created that specifies the conditions and amount of money that both sides can agree upon. This could be a broad agreement in which the parties will later work out specifics, or it could be a comprehensive settlement that ends the dispute.

2. Impasse: The inability of the parties to reach a settlement agreement of any kind. The parties may decide to proceed to court or try further mediation as a consequence. The parties may keep attempting to come to an agreement even if the case does end up in court.

When disputes occur at work, there are numerous ways to settle the matter short of going to court. Mediation happens to be one of the most popular methods for doing this. This will enable the two parties to collaborate in order to reach a solution, and a neutral third party will ensure things are reasonable and on track. It could be very beneficial for both parties to have a legal practitioner present (please note that it is not mandatory). An employment attorney will help structure the details of your case. They can understand what will be most effective and negotiate on your behalf.

FAQs: Employment Mediation

1. How does employee mediation work?

A neutral third-person or mediator is an individual who comes to the sides and talks about the issue with the parties and comes up with a solution through employee mediation. To make sure that the discussions are conducted in the most comfortable way, the mediator of the process helps the parties to engage in a productive dialogue so that a mutually acceptable solution can be achieved. They are going to execute a settlement if the parties can reach a consensus. Otherwise, they could reach a deadlock and perhaps go to court.

2. How should I get ready for an employee mediation?

All pertinent information must be in order before arbitration for an argument against a company begins. You should know how to support your case, explain your argument, and clarify the level of compensation you deserve. Also, you should calculate the extent to which you can negotiate and compromise. A lot of this can be handled by an employment lawyer. They can also assist you in identifying and utilizing your case’s advantages and disadvantages. They can also assist you in determining what, in your particular case, would constitute a fair settlement.

3. What does an employer’s desire to mediate mean?

Nobody enjoys appearing in court. Compared to other conflict resolution methods, it is riskier, more costly, and time-consuming. In the case that an employee files a lawsuit against them, the majority of businesses would rather choose mediation. It gives them the chance to meet with the worker and work out a settlement that works for both parties. Although it is not required, many employment contracts stipulate that it must be tried as a last resort. Prior to any judicial proceedings, mediation is also advised by numerous courts and agencies, such as the EEOC.

4. Who attends the employment mediation?

An impartial third-party job mediator, the employee bringing the claim, and the company in question are all required to attend an employment mediation. A representative with the authority to make financial decisions, including settlements, on behalf of the firm is typically dispatched by the employer. They might also send an agent from their insurance provider.

If the presence of the specific person against whom the claim is made will be detrimental, the employer may choose not to involve them. Although they are not required to be present, people sometimes decide to hire an attorney to manage the processes and engage in negotiations.

Have a quick question? We answered nearly 2000 FAQs.

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Employment Mediation: Process, Benefits, Preparation, and What to Expect

Introduction

Employment mediation: What is it?

What are the Pros and Cons of Employment Mediation?

Can Anyone Serve as a Mediator?

Are the parties in a mediation obliged to follow the result?

How Do You Make a Mediation Request?

What Are the Best Times to Use Mediation?

What Kind of Preparation is Required for Mediation in Employment?

Who Must Attend a Mediation Regarding Employment?

Employment Mediation: Where Does It Take Place?

Process of Employment Mediation

Employment Mediation: Possible Outcomes

FAQs: Employment Mediation

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