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An Insight into Mediation

By Thomas R. Watkins

 

Mediation is a process available to parties who voluntarily consent to resolve a dispute with the assistance of a mediator.  The dispute or conflict may occur in the workplace, between parties in a contractual relationship or between members in a family. Confidentiality is a critical element in mediation. The process itself is confidential which mean discussions in mediation cannot be introduced into evidence in arbitration or a court of competent jurisdiction. Confidentiality promotes dialogue among parties who otherwise would withhold information in fear of reprisal from management. Confidentiality encourages parties to disclose the truth restricting discussions among participants in mediation. The mediator will ensure power is equally balanced among participants in mediation particularly workplace issues. The participants often include managers and executives in addition to the employer representative with authority to enter into a settlement agreement. It is critical all parties realize their job title or status is not a factor in mediation. The mediator will not permit one party to intimidate another in mediation. At some point in the mediation disclosure will have a calming affect on the parties. It will most likely occur when parties realize they are in a relaxed and comfortable environment where information discussed remains confidential.  

When a dispute occurs in the workplace or between parties in a contractual relationship and the parties begin to realize continued discussions exacerbates one or the other personally, that is a good indication to seek the assistance of a professional mediator. An employee is reluctant to inform management she or he has a dispute or conflict with another manager in fear of reprisal. Most managers and supervisors do not want or may not have time to respond to disputes or conflict. They often ignore the conflict and advise the parties to resolve the matter themselves. Some employers incorporate mediation as a condition of employment anticipating employer and employee conflict. Mediation is often the initial step in an employer’s internal employee complaint process. Parties in contractual relationship incorporate mediation as a provision of the contract in the event of a breach. In either situation parties at that point should select a mediator to assist them resolve their dispute. A neutral party, i.e., a professional mediator has the time, is in a better position than the parties to proffer suggestions and recommendations to resolve differences due to the levels of sensitivity and emotionalism parties bring to an issue(s).

Let’s use the workplace as our example. If an employee is in a dispute with management she or he may be required to raise the issue with management via its Human Resources (HR) or EEO department as the initial step in the employer’s internal complaint process. In order to provide a broader perspective of mediation the employer in our example dislikes mediation and entrusts its Human Resources department to investigate and resolve the employee’s dispute. The employee perceives a conflict of interest in the employer’s complaint process specifically the HR department and management. So the employee decides to find a mediator. There are three critical elements you should look for in a professional mediator: impartiality, fairness, and integrity. The employee surfaces the internet for mediators and organizations, i.e., Association for Conflict Resolution (ACR), Southern California Mediation Association (SCMA) and, the Strauss Institute for Dispute Resolution (SIDR), etc., and personal referrals. The objective in mediation is settlement. If the parties have a substantial role in reaching settlement they are more likely to adhere to its provisions. You should consider the experience the mediator has with your issue. Our example is an employment issue but do not rule out a professional mediator has the ability to mediate other issues. You should consider the number of mediations the mediator held and review her or his resume. The search for a mediator is synonymous to searching for an attorney or law firm. An attorney or law firm normally has personal contacts with mediators who have conducted mediation with them. When searching for a mediator remember an attorney is trained to be adversarial when representing their client and the fee may be a matter of consideration. Ultimately the employee will make her selection.

The employee selects a mediator and files her complaint with HR. Afterwards the mediator extends an invitation on behalf of the employee requesting the employer to participate in mediation. If you recall in our example the employer is anti-mediation and does not have a high regard for mediators. The employer’s attorney declines. When an employee files an internal complaint and subsequently invites management to participate in mediation management should genuinely consider the invitation as an opportunity to resolve the employee’s issue(s). The invitation represents the employee’s desire to discuss the matter and creates an opportunity the parties otherwise would not have in the early phase of the employer’s complaint process. The mediation would have been held in a neutral place usually the mediator’s office. The process would not have disrupted the workplace or employee productivity.  Attorneys often dismiss an employee’s invitation to mediate on the premise no official claim has been filed with a federal or state law enforcement agency or in a court of competent jurisdiction. The attorney dismisses an opportunity for management’s early intervention and resolution of a dispute and a chance to avoid litigation. After the employer completes its internal process the employee can file her employment complaint with a federal or state law enforcement agency. As soon as the employee receives a “Right to Sue Notice” she can file her claim in state or federal district court. The employer’s attorneys’ decision has placed the parties in a protracted and costly litigation forum where essentially no one will win but one shall prevail.

In the example above the employer overlooked a priority an endeavor to work through a suppressed economy in an economic recession. In that regard the employer has an obligation to its investors, stakeholders and, customers to consider alternative concepts with minimal risks such as mediation to cut costs. In a sluggish economy the first reaction is to cut costs. If you read our previous article you may recall we recommended mediation in lieu of litigation to substantially cut an employer’s costs.

Some of you have experienced mediation others have not. Of those with experience their evaluation of the process is often skewed with unrealistic personal expectations and unsubstantiated comments. For example; employers challenged the proposition, the mediation process is less expensive than litigation even when it is soundly repudiated. In those situations I found that time, fees, costs and the overall procedure of the two processes were not comprehensively compared and evaluated to equitably refute the proposition. Some employers state the only way of reaching a resolution using mediation is through a monetary settlement. That is an inaccurate and grossly over stated proposition. Even if the statement was accurate when the cost and fees incurred in preparation for litigation is compared with the fees and costs of preparation for mediation it is well known to reach settlement litigation requires a longer period of time and is much more expensive than the mediation process. There is documented evidence of a high number of resolutions using mediation that did not require monetary settlements. Damages having a direct corollary with the issue(s) in dispute usually determine whether a monetary amount is a component in the settlement. Some employers dub mediation a “rip off” or a method employees use to extort money from their employers. Statistical data provided by many organizations that use mediation to settle disputes or conflict soundly refute such a characteristic of the mediation process. Some employers state they would rather fight to the “end” than pay for something it did not do. Simply stated an employer would rather stand on “principal” rather than take a practical approach and settle a matter. Of course that is a right of any employer to make that decision.

An example of a stand on principal; an employer’s management consultant took over managing the employer’s employees. The consultant terminated 24 of the employer’s employees and hired 24 new employees of different ethnicity to fill the same jobs. The twenty-four (24) employees filed an employment discrimination class action law suit with a federal law enforcement agency (EEOC) against the employer. Approximately four years later attorneys representing the employer decided it was in the employer’s best interest to settle the matter and avoid expensive litigation costs that may lead to more job losses. However, attorneys for the employer stated there is absolutely no merit to the claims and settled the matter for $500,000.00. The terms of the settlement require the employer to abide by a three-year consent decree that include policy changes such as setting hiring goals for Latino workers, anti-discrimination training for employees and hiring a consultant to monitor its progress. Keep in mind there was no discussion of attorney fees, four years litigation costs or time lost from a disruptive workplace or the negative headlines that appeared in the newspaper about the company and its employment issues. In our present economy or otherwise do you believe this was the best way to handle this matter considering the costs? Settlement should have been much earlier and costs would have been much less. The employer would have avoided litigation costs and a consent decree in a case that has no merit.

If you are interested in learning more about mediation or if you have questions visit our website: or accept my invitation to discuss the matter over lunch at the Business Forum.


Thomas R. Watkins is a Fellow of The Business Forum Institute and the Principal of Thomas Resolutions. He is a licensed Mediator (City of Los Angeles), Certified Arbitrator, Mediator, Settlement Officer (Los Angeles Superior and Municipal Courts), Certified Advanced Practitioner Employment Mediator ACR (Association for Conflict Resolution), Certified Mediator and Arbitrator with FINRA (Financial Industry Regulatory Authority).  He holds a BS degree and MPA Degree in Public Administration, from the University of California Dominguez Hills. Thomas studied law at William Mitchell College of Law in St. Paul, Minnesota and is a member of the Los Angeles County Bar Association. He has held a number of positions with the Federal Government, most notably with the United States Equal Employment Opportunity Commission.  He is President of the Association for Conflict Resolution LA (ACR-LA).  He is currently serving his second term as President of the ACR Los Angeles Chapter, and is a former member of the National Advisory Council.


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http://www.thomasresolutions.com


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