When a dispute arises between an employer and employee, there may be other ways to handle the problem rather than traditional investigation and litigation. Alternative dispute resolution (ADR) offers a way to resolve the issues between the parties without the high costs of investigation and litigation. ADR options include:
- Mediation: a neutral third party that helps the disputing parties reach an agreement together.
- Arbitration: a neutral party or group of parties that render a decision after hearing both sides to a dispute.
- Collaborative Law: using lawyers representing both sides to achieve a settlement rather than litigating.
- Negotiation: Discussion between parties to reach an agreement.
- What is Employment Law Mediation?
- What Types of Claims Can be Mediated?
- What is Employment Law Mediation with the EEOC?
- How Long Does Employment Mediation Take to Resolve a Dispute?
- What Happens if We Cannot Resolve the Dispute Through Mediation?
- Are there Any Disadvantages to Employment Law Mediation?
- Do I Need an Employment Lawyer for Mediating an Employment Dispute?
A neutral third party, known as a mediator, is designated to assist the disputing parties in an informal and confidential process. The neutral party, does not tell the parties what to do, but helps the parties discuss their opposing claims or issues and offers a path to resolving these issues together.
Mediation is voluntary, neither party is forced to mediate. Mediators are trained and have experience with conflict resolution and can usually offer the following:
- Facilitate a positive environment where both parties can freely communicate in a respectful manner;
- Assist the parties in uncovering the details and facts underlying the dispute or at the heart of the problem;
- Ensures that both parties are heard and all of their issues are addressed; and
- Offers traditional, new, or creative solutions to the parties in resolving the dispute.
Any employment issue has the potential to be mediated if both sides are willing to resolve together. Common claims that are mediated include:
- Worker’s compensation or other work injury claims;
- Disability claims including accommodations;
- Wrongful termination claims;
- Discrimination or harassment in the workplace;
- Pay disputes including retro pay and overtime pay;
- Insurance or liability claims; and/or
- Medical and vacation leave disputes.
The United States Equal Employment Opportunity Commission (EEOC) offers a free mediation program for resolving employment disputes that pertain to a discrimination or harassment claim. After a charge of discrimination is made, the EEOC will offer mediation as an option to resolve the complaint before a full investigation is conducted.
You do not have to wait to be invited for mediation from the EEOC, you or the other party can apply for mediation through the program. If either party has an attorney, they are welcome to bring their attorney to the mediation. There is no cost to participate in the program and many participants express a positive experience selecting the mediation option.
If a favorable resolution is not reached, the investigation into the complaint will continue so there is no risk of losing your right to investigate the discrimination claim if you mediate first without results.
Mediation is far more efficient than investigating and preparing a lawsuit. Most mediation cases can have a full resolution within 3 months of seeking mediation. The EEOC reports that most employment cases mediated with their agency take only 3-4 hours to reach an agreement.
If you cannot resolve your dispute through mediation, either party may choose another action:
- Some employment contracts have clauses that require disputes to be handled through a court of arbitration.
- Disputes regarding discrimination in the workplace, usually require a complaint to the EEOC within a particular period of time and then the EEOC will open an investigation into the complaint. The investigation will continue should EEOC mediation not work out, just like any other complaint.
- Either party can hire an attorney to pursue a settlement.
- The parties can attempt to resolve their dispute on their own through negotiation without any outside assistance.
- Both parties are free to pursue their claims in a court of law by filing a lawsuit. However, investigations and lawsuits typically take years before a final resolution is reached.
If either party is not committed to resolving the dispute by compromising and finding a common resolution, then mediation may be a waste of time.
Generally, mediation is a good start to a dispute if both want a quick resolution and one that takes into consideration both parties’ concerns so that a cooperative relationship can exist after a dispute. Because mediation is cost effective and confidential, there is little risk in attempting mediation before pursuing other options.
Consulting an employment lawyer can help you understand the law that governs your issue and give you an evaluation of the merits of your claim. Getting this information before you mediate or during meditation may help you reach a resolution that takes those things into consideration so you know what legal options are most probable.