It seems that mediation has begun to emerge as the preferred form of alternative dispute resolution in employment discrimination cases. There are certainly advantages for both parties, including more confidentiality and privacy, less emotional trauma than a full-blown trial, less cost, and greater flexibility. But what is mediation of an employment case really like and how can you, as the plaintiff or employee, prepare for the experience?
The Nature of Workplace Disputes
An employment case is not only about the actual dispute between the parties. It also inevitably involves very personal issues, such as validation and self-esteem on the part of the employee. An employee who has suffered discrimination, harassment or retaliation in the workplace, will likely feel a wide range of emotions, including anger, betrayal, humiliation and a feeling of degradation. The same goes for the accused harasser or discriminatory, who will likewise feel embarrassed, stigmatized and humiliated. Even the corporate officials will be fearful of damage to the company's reputation, regardless of the outcome.
All of these emotions understandably lead to a very intense situation. The careers of individuals on both sides of the dispute may be at risk. For these reasons, it is crucial to address these issues in any rights-based case. Otherwise, the mediation is doomed to fail. Although the participants in an employment mediation are not expected to act as psychotherapists, they must still be able to recognize and empathize with the psychological issues that will likely arise. The parties should also be willing to approach the mediation mindful of the potential impact of these issues on the mediation process itself.
The Timing of Mediation Can Be Important
It is the opinion of most experienced mediators and attorneys that employment cases should not be mediated too early or too late in the litigation process. While all parties need the opportunity to obtain sufficient information to make an informed decision regarding settlement, too much discovery can lead parties to become set in their positions regarding settlement. Instead, each party needs sufficient information to adequately evaluate their respective case and understand and appreciate the risks of going forward with litigation and trial.
An advantage of mediation can be creative resolution
Employment mediation may provide the unique opportunity for creative solutions. In other words, once a judge or jury is in the position to decide the case, the possibilities for resolution may be limited to monetary damages or injunctive relief. During mediation, willing parties can discuss a wide-variety of unconventional options for resolution of an employment dispute. Some examples include workplace accommodations, reassignment of certain individuals, and additional training for the accused. Out-placement services for the employee, severance packages and letters of reference are also components of settlement that can be explored during mediation.
If you feel you have questions about mediation, or your employment rights, please contact Michel Allen & Sinor , either online or by calling us at (205) 265-1880.