Employment disputes present special difficulties because of the strong emotions involved on both sides.
On the employee side, especially in cases of termination, there is often economic distress (loss of income and benefits) as well as intense embarrassment at having lost a job. On the employer side, there can be a sense of betrayal and of outrage at being accused of discrimination or bias.
Effective mediators are aware of these possible crosscurrents and try to ensure that both sides have a full opportunity to express their anger and frustration. At the same time, a mediator must also keep the conversation moving toward a resolution and not allow backward-looking discussion to derail a settlement.
Consequently, mediators must often devote a substantial part, if not all, of their initial session with employees to listening to them talk about how they are doing now. Have they found new employment, do they face any imminent medical or mental-health issues, do they fear loss of their home or car? These are they type of emotional distress-points that a mediator will need to be aware of and try to deal with using a negotiated settlement.
Sessions with employers are typically more about risk assessment and the cost of defense, but here too there can be a need for venting. Charges of discrimination can sting, especially for employers who have made serious attempts to develop a diverse and vibrant workforce. Such attempts, of course, do not necessarily insulate an employer from liability, but employers can experience a sense of “we did everything we could” that they need to express and that a mediator should acknowledge.
Another difficulty arising from employment disputes is that employees often misunderstand the relatively few protections afforded by employment laws. This problem is especially keen for the increasingly large number of employees who bring their actions without a lawyer. Simply put, an unfair, even ignorant, decision by an employer is not actionable unless a decision was motivated by race, age or other protected status.
This may seem obvious to lawyers, but to lay people, it makes no sense that an employer can act “unfairly” and not be liable for that conduct. This perception needs to be met with patience and often a discussion about the scope of employment laws and what they require for recovery. A mediator cannot give legal advice. At the same time, mediators do little to facilitate the process if they allow misperceptions about the reach of employment laws to persist. A mediated resolution depends on both parties being able to act on as clear an understanding of the facts and the law as possible; misunderstanding does not advance the interests of anyone.
Resolving employment disputes can often involve more than money
In many business disputes, mediation is meant primarily, if not solely, to come to a monetary number that everyone can accept. This can require persistence and persuasion on the part of a mediator, but not a great deal of creativity.
Employment disputes, on the other hand, often provide opportunities to exercise some inventive problem solving. Mediators should be alert for whether the following types of provisions can help parties put their dispute to bed: allowing an employee to continue receiving medical or educational benefits for a set period, waving or shortening non-compete provisions, extending job-placement assistance, providing neutral references, and agreeing to non-disparagement clauses.
Most powerfully, an employer’s apology for conduct that, while not actionable, is nevertheless not laudable, can go a long way toward resolving a dispute. And if not an apology, then some acknowledgement that the employee was valued and respected can help heal the psychic wounds many disappointed employees suffer.
Timing of the mediation
Finally, the timing of when to mediate an employment dispute can be critical. If you try too soon, an employee is not likely to be emotionally ready to reach compromise. Moreover, employees may not have critical information, such as their personnel file or documentation regarding an employment decision. That’s often information they will need to assess the value of any claim. But if you try too late, the parties will have already expended significant resources and may have angered each other through discovery practice.
Before mediation can be effective, the parties will need to have enough information about the claim to enable informed decisions. If they don’t, then mediators should suggest focused discovery, such as depositions of the employee and the key decision makers, and production of the documents that will be at issue in the dispute.
A good guide for this type of base-level discovery is provided by the Federal Judicial Center Pilot Project Regarding Initial Discovery Protocols for Employment Cases Alleging Adverse Action (hereinafter “Discovery Protocols”). The Discovery Protocols set out the basic types of information that should be sought and produced in employment cases. Even if not used for initial disclosures under Fed. R. Civ. P. 26(a)(1) (in most federal districts, they are not mandatory), the Discovery Protocols are particularly helpful for pro se litigants, as they help these parties understand what they should be seeking and what they can expect employers will seek from them in discovery.
Ensuring that the parties have access to the type of information described in the Discovery Protocols will go a long way toward making mediation sessions productive. The converse, forcing parties to mediate before they are ready emotionally and informationally, simply wastes time and money.