In general, mediation is a process that helps two conflicting parties resolve their differences. This is usually done outside of the formal court process, through the assistance of a “mediator.” A mediator is a neutral person or agent who helps the parties communicate with one another.

In an employment setting, employment mediation is meant to help resolve disputes like employment discrimination, workplace harassment, wage and overtime disputes, and termination issues. It can be a less costly alternative to litigation for parties willing and able to participate in the process.

What are the Pros and Cons of Employment Mediation?

Mediation offers several benefits to both sides of a dispute. The parties control the mediation process, so no one person can impose a settlement. The parties also have the flexibility to craft a settlement that meets the needs of both sides. The mediation process is private and confidential, which is beneficial because employment matters may reveal sensitive information.

Additionally, settlement communications conducted during mediation are typically considered inadmissible during court proceedings, so private information will not be revealed during litigation if the mediation is unsuccessful.

The process of mediation is often faster and less expensive than going through the court system. Litigation usually requires extensive amounts of court filings and appearances. In addition, litigation requires long discovery processes. Parties can use mediation to limit such processes. Mediation may reduce attorney’s fees and court costs while also speeding up resolution. Costs are usually low for court or agency-mandated mediation programs. Some programs may even be free.

When mediation works, it is a valuable tool. However, parties may not always come to an agreement. In these cases, mediation may prolong a case, as parties will have to start over with litigation and incur court costs on top of mediation costs.

Who Can Act as a Mediator?

The mediator between the parties needs to be neutral, meaning that they are not interested in profiting from either side. For most employment mediations, a state-appointed representative will usually act as a mediator. This is because most employment disputes are resolved by filing with a state employment dispute agency. The agency may then prescribe mediation as an option for the parties.

Alternatively, a professionally trained person can act as a mediator between the parties. This may include persons such as lawyers, counselors, or advisors. This is usually the case if the mediation is connected to a private lawsuit.

Are the Results of Employment Mediation Binding on the Parties?

In most cases, the direct result from employment law mediation may not be completely legally binding on the parties. These may consist mostly of transcriptions of each party’s statements, containing important facts involved in the claims. Any results or decisions reached by the parties and the mediator usually still need to be submitted to the court. They will be reviewed or will become part of further litigation.

After this, the court may decide to convert the results of the mediation results into a formal court order, which would be legally binding on the parties. Thus, employment mediation is more like a preliminary stage in the entire process; it usually forms an initial starting point for actual court decisions.

Also, if the parties reach an agreement, they can settle the matter based on the mediation by creating a contract (such as one involving repayment terms for losses). This contract would be binding if it followed all the requirements for a legal contract in that state.

How Can I Request Mediation?

You can request mediation by filing a complaint with your state’s employment department. The department will review your claim and may begin investigating your workplace dispute case. In most cases, the department may suggest mediation as an option if they feel it is appropriate in your case. Again, this is usually an optional process rather than a mandatory one. If you feel that mediation would work well for your claim, you may also wish to request it directly from the department’s representative.

When is Mediation a Good Idea?

Mediation may be mandated by courts, agency regulations, or employment agreements. Typically, mediation occurs shortly after a complaint has been made to an employer, agency, or court. However, parties can seek mediation on their own at any point during the dispute resolution process.

Parties may be encouraged to seek mediation as soon as possible to preserve confidentiality or save time and money. Producing documents for discovery can be very expensive. However, parties may wait to evaluate the strength of each side’s argument before pursuing a mediation. Oftentimes, mediation is pursued right before or right after an important court ruling, such as a summary judgment or pre-and-post-trial appeal decisions. Each party may want to avoid the costs or uncertainties of court decisions if such a decision would weaken their case.

What Preparation is Needed for Mediation?

Before mediation can begin, the parties must agree to some key terms. These terms may include:

  • Who will act as the mediation
  • Where the mediation will take place
  • Who may attend the mediation
  • How the costs will be split

Some issues will be affected by whether the mediation is required by a court, agency, or contract. Prior to mediation, attorneys will educate clients about the process. Attorneys will evaluate the strengths and weaknesses of their client’s cases. Parties should fully understand issues that may arise, options for resolution, and the consequences of not settling.

Additionally, attorneys will prepare written statements for the mediator. These statements provide important background information about the dispute, explanations of key facts and legal issues, and the status of any litigation and settlement discussions. These written statements may also indicate acceptable settlement terms. Relevant evidence may be attached. The submission of these written statements may or may not be shared with the other party. Two versions of the material may be made, with one for the mediation and another for the opposition party. The version for the opposing party may have certain information redacted.

What is the Setting for a Mediation?

The mediation setting varies depending on what caused the mediation. For example, if an employment contract requires mediation, the agreement will also likely specify where the mediation will be conducted.

Courts and agency programs also provide forums for mediation. If the mediation is private, parties may turn to alternative dispute resolution providers that will administer the mediation and provide a location.

When Does Mediation End?

Mediations end when the parties decide to conclude by reaching a settlement or an impasse. When parties settle, they agree to terms outlined in a settlement agreement.

Do I Need a Lawyer for Help With Employment Mediation?

Employment mediation offers a valuable means of resolving disputes. Experienced legal representation is just as necessary in mediation as it is during litigation. Employment mediation laws and rules can be very different from jurisdiction to jurisdiction. Hiring a qualified employment lawyer is to your advantage if you need assistance with the employment mediation process. Your attorney can provide you with legal advice and represent you during meetings to ensure that your rights are protected.

Consider using LegalMatch’s large database of workplace lawyers to find an employment law attorney in your area. LegalMatch’s services can help you narrow down your search for a lawyer in your city or state by selecting the issues involved in your case. There is never a fee to present your case, and LegalMatch’s services are always 100% confidential.