Posted on January 16th, 2019
Entering mediation with one of your employees can be a time consuming and stressful process.
Understand what your legal obligations are with this post.
Entering into mediation with an employee can be time-consuming and stressful. But it offers the possibility of saving a whole lot more stress and legal costs by potentially avoiding taking the matter to court.
So what’s the difference between mediation and arbitration, and what are your legal obligations in the process?
To break this process down, we’ve laid out 7 tips for understanding how employment mediation works. Ready to take a look? Let’s go.
What’s the Difference Between Mediation and Arbitration?
Arbitration is where parties hire a private qualified mediator. After hearing both sides of the case, they will make a decision. Their decision is binding on both parties.
Mediation is an entirely voluntary procedure, that both parties enter into to reach an agreement. If the two parties come to an agreement, it’s a non-binding form of alternative dispute resolution.
It usually happens outside of the court system using a private mediator.
The mediator is usually either an attorney with a specialization in the area or a retired judge. While they may have an excellent understanding of the law, they cannot advise.
They are present as an independent third party.
It can take anywhere from one day to a week or more, with the judge acting as an intermediary.
They’ll go from one side to the other, using their knowledge of the law to bring each party closer to a middle point, to some sort of resolution.
How do they get you closer to a resolution? By talking to each side about the holes and weak points in their case.
If the mediator does their job well, both sides will dislike them – they aren’t there to tell you the strengths of your case.
7 Tips for Understanding Mediation
We know meditation can be confusing since it’s a legal process, but voluntary and non-binding, at once. Let’s look at 7 tips to understanding it.
1. Information is Privileged
The information you share during the mediation is privileged. The other party can’t bring up in court later something you said during mediation.
However, they could look for evidence of something they only learned about from your verbal admission and enter that in court as discovery.
2. It’s Not Personal!
The mediator will generally move from one party to the other, pointing out why their case is weak. Don’t take it personally.
Remember it’s happening on the other side too, don´t take it to mean your case is weak.
3. This Is No Time to Ignore Legal Counsel
Mediation is no time to start ignoring legal counsel. Follow your lawyer’s advice about what admissions to make and which you shouldn’t in case it moves to arbitration.
An experienced lawyer can spot the minefields long before you will.
4. The Mediator Is Neutral
The mediator is a neutral, non-partisan third party. Their role is not to choose a winner as a judge might, but to get the case settled.
That is their singular prerogative.
5. Be Patient
Mediation is a process, not a sprint. Be patient. Even if you make big concessions, settlement may still take some back and forth and some time.
6. It Is Voluntary
This might seem to be stating the obvious, but once the mediation is underway we can feel obligated to resolve it. Don’t cave in to pressure to settle if the middle point is far beyond what you and your lawyer feel reasonable.
7. There Are No Penalties for Quitting
If you can’t settle, you’ll need to move to formal litigation. This will cost you more in time and money, but there is no legal penalty for having quit the mediation process.
Why Mediate?
Choosing to try mediation over traditional litigation has several advantages, especially for employment issues like workers comp or unfair dismissal.
It’s more affordable, can produce a quicker resolution, its a participatory process for both parties, and confidential.
Mediation presents a real advantage in preserving a healthy relationship between the two parties.
Once you enter a litigation process conflicts escalate and it can be hard to restore your working relationship. Formal litigation costs more than twice what mediation does. In terms of time as well as money.
For mediation, a decision can be reached within weeks of beginning the process. Meetings can be scheduled on weeknights or weekends.
These options are off the table in a normal court proceeding. It can be empowering as both parties feel part of the process.
In litigation, lawyers and judges own and argue your dispute for you. It’s out of your hands, which is dis-empowering as well as costly and time-consuming.
In mediation, you or your employee may feel a sort of healing by going through the process of airing the detail of the grievance to a third party.
There are cases were the process even strengthens the working relationship. Part of the settlement can include rules for managing the working relationship in the future in ways that are more satisfactory to both parties.
What’s the Process?
A mediation process follows several defined steps.
During the “Introduction” stage, you discuss administrative matters such as fees, confidentiality, the schedule for the mediation hearings, the expectation of full disclosure, and code of conduct.
Next comes the ‘Problem Determination’ where each party gives the facts and circumstances which lead to the situation.
The third step is the ‘Generation of Options and Alternatives’. Each party will explore areas of a possible settlement with the mediator.
The final stage is the ‘Clarification and Agreement’ in Writing. Here, all participants agree on the terms of the settlement. They are written up and signed in the moment, or at a later date in front of counsel.
What’s Better Than Mediation? Avoid Legal Issues Altogether!
So there you have it – an understanding of mediation, and the reasons why it’s a better alternative than arbitration. As an employer, you want to do everything possible to avoid landing in legal issues.
You need to focus your time and energy growing your business, not fighting avoidable legal disputes.
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