Employers repeatedly tell me they are tired of expensive and time-consuming employment lawsuits that leave everyone unhappy. They lose good employees, not knowing there were issues big enough to cause them to resign. Often, those issues could have been resolved informally well before those employees resigned or filed complaints with outside agencies. That’s where mediation comes in.
Employment mediation is regularly used in disputes when:
- The parties‘ emotions are getting in the way of productive discussions
- There are multiple conflicts involved and they can’t agree on what is most important
- They’ve lost the ability to think positively or creatively about potential outcomes
Consider Who is Involved
Is there more than one person “on the other side” of the dispute? If so, how are they getting along? Do they need a continuing relationship? Do you need one with either of them? It takes a little more time and effort to reconcile each person’s needs and wants in a multi-party dispute, but mediation can be transformative and improve all these relationships, while also resolving the dispute.
People Versus Entities
Is one of the parties an entity that is treated like a person (e.g., a corporation)? If a business is involved, how big is it? Who is likely to attend on that business’ behalf? Will it be an attorney assigned by an insurance company?
Lawyers are welcome to attend mediations with their clients, but we typically ask them to allow their clients to do most of the talking because no one knows the parties’ values, beliefs, wants, and needs than the individuals who have them. We also ask the lawyers to trust the process, which isn’t always easy for them to do because we don’t focus on winning and losing. Instead, we search for creative, win-win solutions.
Has the other party been generally reasonable, yet stuck on one or more issues? What result do they seem to be seeking? How might resolution and closure benefit them? Most people know court sucks. It’s expensive–in terms of money, time, and energy. Once we work through some of the emotional elements of the dispute, such as hurt feelings and unmet expectations, most people can see a way out that doesn’t require destroying each other publicly. Yet you won’t usually get that result in court. When you defer to the court, you’re asking someone else to tell you what you deserve. In mediation, we let you determine that.
Consider What You Really Want
Many cases can be resolved through mediation, but resolution isn’t the only reason parties mediate. It can also be used to address issues that a court isn’t designed to consider.
Respect for Lived Experiences
Rarely when adults go to court for the first time is it the first time that they’ve ever experienced something traumatic. They might unknowingly bring unresolved hurts to the courthouse, expecting them to be healed in the course of their lawsuits, even if they aren’t fully aware that their current situations are more upsetting because of what they remind them of from their pasts. At trial, there are objections to the relevance of these open wounds. In mediation, we can work through them and explore their impact on the conflicts at hand. Sometimes, we can even help people heal from them. We help them get free, not only from the current dispute, but other parts of their pasts, too.
A New Future
In civil cases, most of what that court can give you is money damages. That can often help you pay off some bills, find a new job, or solve a few other financial problems. But it can’t build skills on the spot or transform relationships–at least not in the ways we usually want them to transform. When parties want a complete resolution that involves all this, mediation is the better process. We aren’t confined to only the claims listed in a formal, written complaint, nor are we limited by statutes of limitations. If you’re still mad at your boss for eating your leftovers two years ago, we can address that, too, if necessary to set both of you up for success.
Self-Respect and Freedom from Guilt
You might be surprised how many people don’t feel happy, even when they win their lawsuits. Sometimes, this is because the money they were awarded was not as much as they hoped. At other times, it might be because of who the parties had to become to win. They’re now stuck at home, not working and not leaving often, because they had to claim a lot of limitations to get the money. Or maybe their closest friends at work are still employed by the business and stopped calling when all they did was demonize a place where they spend most of their hours each week. In mediation, we try to help you resolve the dispute by being the best version of yourself, not the worst or most damaged.
Benefits of Mediation
Law firms estimate $125,000.00 is the average cost of defending an employment lawsuit through enough discovery to file a summary judgment motion. If the motion is denied and the case goes to trial, the legal fees are typically twice that amount. Early neutral evaluation will usually cost less than $1,000.00. Similarly, fees for a full-day mediation are around $1,500.00.
Use Time Wisely
The discovery process in an employment lawsuit can take many months, and the process can be delayed several times. My employment lawsuit was in a small county in Texas many years ago and still took four years to resolve. I wasn’t actively engaged in it every day during those years, nor was my attorney, but it occupied more time than I ever imagined. That was in part because it took up a lot of mental energy.
My former employer and I both lost valuable relationships during the litigation process. I have repaired the ones that mattered most to me, but it took years beyond the judgment to reach that point, and they will never be the same. Trust was broken. Things were said that can’t be taken back. Careers went in different directions. A business failed.
One of the worst parts of the litigation process was the invasiveness of the discovery process. My former employer demanded medical and mental health records, attempting to paint me as unstable and deserving of mistreatment. My attorney tried to match that aggression. Local news media got involved. Today, the case would probably also be tried in the court of public opinion on social media.