Mediators And Mediation Styles: How The Mediation Is Conducted

Mediators are often trained attorneys, however they differ from judges or arbitrators in that they remain neutral to both the parties and the dispute.  The mediator does not decide who is right or wrong; instead, she works with the parties to find a settlement amount or other creative solution that satisfies both of them. 

In the dominant mediation model, after the initial joint session and opening statements, many mediators separate the two parties into different rooms.  This is called caucusing.  When caucusing, the mediator speaks with one side for a period of time, then speaks separately with the other side for a period of time.  She actively encourages settlement in a variety of ways as she moves back and forth, carrying information between the two rooms.  From the parties’ perspective, they may enjoy the privilege of an open dialogue with the mediator which may be kept confidential from the other side (depending on the mediator).  However, there are long delays while the mediator is not in the room.  The parties never hear what the mediator discusses with the other side.  Usually, the parties never see each other again until it is time to sign the settlement agreement.  Instead they bargain for what they want through the mediator.

In the facilitative model, mediators keep all parties in the same room for the entire mediation.  Mediators who use this style prefer to have the parties, not only the attorneys, actively engage in the mediation discussion.  Facilitative mediators tend to believe that since the parties have lived with the dispute for some time, they are the “experts” and likely have the best ideas of the types of solutions that will create resolution. 

Mediators also keep the parties in the same room because this allows for potentially transformative experiences between them.  Often, great anger has built up between the parties as the conflict has developed and, unless expressed and addressed, there may be little opportunity for truly creative problem-solving.  Having the parties hear each other’s side of the story can create greater understanding and bring emotional closure to the dispute.   Better resolutions can be crafted with both parties working together, rather than working apart.

Why You Should Consider Mediation

Mediation has become a standard part of employment law litigation, whether it is governmental agency-based (before a lawsuit is filed) or privately chosen (parties pay for mediation after the lawsuit is filed).  Since each dispute is different, it is recommended that you consult with your legal counsel prior to deciding if mediation is in your best interests.

Mediation benefits employers in multiple ways.  Its primary benefit is that it opens the channels of communication between the parties early in the legal dispute process.  Employees file employment discrimination complaints because they feel they have been treated unfairly, yet they have not always given their employers or managers a chance to explain the situation fully.  Mediation provides an opportunity for face-to-face communication, for venting of emotionally charged feelings, for clarification of misunderstandings and for delving below the surface dispute to what really matters to the parties.  In pre-litigation mediation, this occurs before each side has become entrenched in their legal positions.  This can be especially useful where the employees engaged in the dispute will continue to have some form of an on-going work relationship. 

Mediation also allows for more creative solutions than litigation.  Because each party is given the opportunity to state what she really wants, resolutions can range from apologies to creative termination agreements, from outplacement assistance to monetary payments.  The primary litigation resolution is monetary payments which may not always satisfy either side fully.

Mediation is more cost-effective and efficient than litigation.  Because agency mediations generally happen early on in the legal process, little has been invested by either side in attorney’s fees, discovery costs or protracted legal maneuvering and thus less may be expended to resolve it.  Statistics show that early mediation settlement amounts are typically less than litigation settlements, both of which are less than jury awards.  Of course, one downside to the lack of discovery is that the complainant does not have all the information available and so may believe that her case is worth more than it actually is.  Mediation provides a chance to educate the complainant and receive information from her, but may sometimes be too soon for some complainants to give up the fight.  However, where mediation works, it can resolve a dispute in a single day rather than over the course of years.

At the EEOC, the DFEH and in many states, all that is said or written in preparation for or during mediation remains confidential and cannot be used in any litigation proceedings that follow.  This is beneficial to employers and complainants because it avoids publicity around the claims made and encourages greater sharing of information that will help resolve the dispute.

Additionally, agreements reached at mediation do not constitute an admission of fault by the employer or the employee.  There is the opportunity for both sides to achieve a “win-win” rather than a “win-lose” agreement.

Lastly, at EEOC and DFEH mediations, many complainants do not bring and have not yet contracted with attorneys.  This may be helpful in reaching resolutions that are of a less legal nature since data show that, in the case of harassment, many employees often only want an apology and for the behavior to stop.  As an employer, you might choose to attend a mediation without legal counsel in the hopes of achieving this type of informal, less costly settlement solution. 

Some potential drawbacks to mediation include the concern that the availability of mediation encourages disgruntled employees to file frivolous complaints.  Some employers also feel that agreeing to mediate, rather than continuing to litigate, is a sign of weakness and sends the message that the employer is willing to pay something.  In cases where the employer is certain that the complainant’s case has no legal merit, it may not make sense to mediate.  In addition, the lack of information on both sides may be a disincentive to mediate early, since neither party has a clear idea of the value of its case.  Some participants, of course, see this as a benefit which can lead to earlier settlement.  Ultimately, when faced with a decision regarding mediation, an HR professional or an employee should consult with legal counsel and weigh the benefits and drawbacks of mediating that particular dispute.

How To Prepare For Mediation

As an HR professional or manager preparing for or involved with mediation, review the following tips to help ensure a more satisfactory resolution:

• Know the facts:  review the complainant’s and accused employee’s personnel files, any investigatory report, disciplinary documents and organizational policies and practices prior to attending the mediation.
• Bring documentary evidence that will support your case, even if you choose not to show it to the opposing side.
• Talk to the complainant’s manager or anyone else involved in the case.  Gather as much information as you can that might assist you in achieving resolution.
• Come prepared to give an informal opening statement in which you present your organization’s side of the story.  
• If your organization is representing the accused employee/manager, decide before if that person will speak and what he/she will say.  Although he/she is not required to attend, think about whether it would be helpful in resolving the matter (e.g. if he/she apologized to the complainant, would that help settle the dispute?)
• Have decision-makers attend the mediation:  Each party must have someone who can sign the legally-binding agreement if resolution is reached.  If no settlement is possible at your organization without the ratification of a high-level executive, ensure that this person is available for signing as needed through out the mediation.
• Consult your in-house counsel or representing attorney prior to opting for or attending mediation.  Determine whether to bring your attorney with you.
• Know your settlement range and what other options you can offer the complainant.
• Bring a sample settlement agreement with you to the mediation so that all clauses you may want included are available.  If possible, bring the agreement on a laptop computer so that you can draft the final provisions at the end of the mediation.  The EEOC and DFEH also have sample settlement agreements available.
• Think strategically, but also come with an open mind.  This is an opportunity to achieve creative resolution and save your organization a tremendous amount of money and time, not to mention publicity.  All these translate into higher employee morale, savings to the organization and better use of resources.
• Think about how mediation affects your organization on a larger scale; consider providing training to internal HR and legal professionals on successful mediation strategies and techniques.

For more information on the EEOC and DFEH mediation programs, please visit the following web sites:  www.eeoc.gov and www.dfehmp.ca.gov.