Mediation is a confidential process where a trained and experienced neutral helps parties to resolve a dispute. Often, the end goal of mediation is a settlement agreement where the parties come up with their own settlement terms. That does not mean that only legal claims can be mediated. Whenever there is a dispute, parties can mediate to determine how to resolve the issue. For in-house mediation, the parties will often continue to interact with one another, so another major goal is to improve the parties’ relationship.
There are many good reasons for companies to offer mediation to their employees. Mediation can improve morale by helping employees feel heard and understood. While open door policies are important, mediators can improve the likelihood that the conversations will be productive. It is empowering for employees to realize that they will create their own solutions rather than having decisions imposed on them. If employees feel heard and understood, and issues are resolved, there is no need for employees to seek out attorneys or to unionize. Instead, their employers are meeting their needs.
Implementing and administering a mediation program is cost-effective compared to lawsuits, strikes, or other ways employees might solve their problems. Many times, employees may not seek money or a promotion through mediation. Often, employees want operational policies and procedures if they are frustrated that there has not been clear direction on how to carry out their duties. Employees may want training either for themselves or their managers. Some of the best employees are vested in seeing improvements in the workplace, and mediation helps pinpoint necessary changes and retain good employees. Mediation is relatively quick. Although it takes some time to schedule mediation (that’s often the most difficult part), once the mediation begins, the issues may be resolved in a matter of hours. While it may take time to implement some of the items in the settlement agreement (and sometimes not), there’s instant relief in knowing that the employees have worked together to come up with a solution they believe can move the working relationship forward. Even when parties do not reach a settlement, often the process has resulted in them coming closer to reaching a solution or improves understanding and communication.
In deciding whether to implement a mediation program at your company, it may help to review what happens during mediation. The mediation begins with the mediator’s opening statement; the mediator explains his or her role, the confidentiality, as well as how the process will work. Then, the aggrieved party presents his or her opening statement, providing background facts and outlining any issues. Once the aggrieved party provides an uninterrupted opening statement, the respondent does the same. During the joint discussion, the mediator may ask clarification questions; the parties have a chance to ask each other questions, and the mediator may begin exploring possible solutions. In general, after the joint discussion, the mediator will have a private caucus with each side; that allows each party to discuss any matter the party may not have felt comfortable discussing in a group discussion. (If parties are behaving in a hostile manner, the mediator may opt to begin the mediation with separate caucuses.) The mediator gauges when and whether to continue caucusing or having joint sessions depending on what will be most effective. If an agreement is reached, the parties meet together with the mediator and jot the terms of the agreement down. Even if there is an impasse, the parties often still get together with the mediator to thank each other and to end on a positive note.
With in-house mediations, sometimes there is a deciding official who works at the company and who reviews the settlement agreement to see if it is feasible for the company; it may be that the parties agree to something that the organization cannot allow. Where there is a deciding official, the agreement is considered tentative, pending approval by the deciding official. At the end of the mediation or afterward, the deciding official determines whether the tentative agreement can be finalized. At ELS, we have experience serving as mediators and representing parties at mediations. If you need that help, or if you need help creating a mediation program at your company, let us know how we can help you. Contact Halima White at hwhite@theemploymentlawsolution.com.
Halima White
