Seven Reasons Why Mediating Employment Disputes Is a Good Idea

It's Personal

Employment claims differ from ordinary commercial disputes for the fundamental reason that employment issues are routinely linked ' sometimes completely intertwined with ' a person's self-esteem or self-image. Because of the nature of employment claims, the calm dispassionate calculations which often govern commercial disputes are conspicuously absent when it comes to employment and personnel matters. Instead, they are replaced by unhealthy feelings of anger, remorse, regret and vengeance. Breaking through these emotional knots can sometimes become impossible, if they are not addressed fairly early on, because people far too frequently become emotionally 'vested' in their positions. Mediation, particularly if conducted soon after it appears that the parties cannot resolve matters themselves allows them to take another look at their problem in a calm, more reflective setting with the help of a trained impartial observer.

It's Safe

Courtrooms and judges are often anxiety-producing. The mediation forum is a more relaxed environment. While it is always a good idea to come well prepared to a mediation, the profound stress attendant to litigation is noticeably diminished and, in some cases, absent during the mediation process. If the mediation is successful, parties feel comfortable sharing both the strengths and weakness of their cases with a trained mediator who will convey to the other side only that which he or she is authorized to do. This environment enables parties to reveal the pros and cons of their respective cases in an environment which is non-judgmental, insofar as the mediator is concerned, and very conducive to resolving disputes.

It Can Be Cathartic

As noted, employment claims are unique in that employees and employers may become wrapped in their positions and convinced of the moral (and legal) certainty of their positions. What mediation permits is the simple opportunity to vent. The alone may facilitate a proper solution of a matter that never would have been resolved without such an opportunity. Similarly, mediation facilitates and encourages parties to express regret to the extent that their actions have caused damage or hurt feelings, in a way that does not prejudice their positions in the future. This cathartic opportunity allows participants to get 'unstuck' and, therefore, free to explore creative solutions to an employment problem.

It's Informative

One of the biggest impediments to resolving disputes is the absence of an opportunity to exchange information freely in a constructive environment. This perceived inability to exchange information often leaves to enhanced distress. Mediation allows information gathering. Employees, for example, who are utterly convinced that their termination was the result of an illegal or wrongful action, may learn that there is another explanation that never occurred to that individual. Similarly, employers can learn during the mediation process how the indifference of poorly trained managers can create a climate of mistrust. This ability to share and obtain information is useful, not only in evaluating whether there is actual liability, but also in assessing the prospect for damages. Far too frequently, employees file suit without any appreciation of their ultimate damages or even whether they have been economically damaged at all. Mediation allows parties to shed light on what is truly in dispute, and to determine whether litigation (or, as the case may be, additional litigation) is justified economically or otherwise.

It Usually Creates Positive Momentum

Many employment disputes never settle (or are never in a position to be settled) because such a terrible momentum of negativity and distress has been created by one or both parties. This momentum includes destructive labeling, posturing, and threats. Mediation, on the other hand, encourages the exchange of information and constructive solutions to what once seemed insurmountable problems. The exchange of information, as well as the discussion of possible successful outcomes, often changes the climate of distrust and instead creates a positive momentum toward exploring avenues of success rather than paths of destruction. As a result, even cases that are not settled during the initial mediation session may resolve later, because the parties have decided to devote their time and energy towards resolution rather than litigation. In short, they have interrupted patterns of negativity and replaced them with patterns of cautious optimism about the resolution of their dispute.

It Makes Dollars and Sense

The litigation costs associated with employment claims are very high and becoming increasingly more expensive. It is not uncommon for cases to cost $50,000 to $100,000 (and more) through and including trial. The economics of a possible settlement can be shattered if efforts to mediate are not made early. Regrettably, many employment disputes have been permitted to proceed down a lengthy and expensive litigation path, because parties bypass the opportunity to mediate early in a case when most of the information was either available or readily available, if the parties had simply chosen a different, more constructive approach.

Marc R. Engel is a shareholder at Lerch, Early & Brewer, Chartered, where he is a member of the firm's employment and litigation groups. Engel advises clients on employment issues, litigates and mediates employment and business disputes, and counsels companies and organizations on litigation avoidance strategies. He has been selected by the Circuit Court for Montgomery County to be on its approved list of mediators for civil litigation and employment matters. He can be contacted at 301-986-1300 and at [email protected].

The explosion of employment claims in this country has resulted in an increased focus on resolving employment disputes prior to trial, in particular through mediation. Unfortunately, businesses and their managers often fail to appreciate why employment matters are particularly well-suited to mediation. This, in turn, discourages parties from participating meaningfully in mediation. The following article examines seven compelling reasons why mediation is such an attractive and viable option for prospective litigants.

It Provides Control

This voluntary non-binding process is actually empowering. It allows parties to control the outcome of their disputes in ways that courts and juries often are unable to do so. Judges and juries are routinely limited in the relief that they can provide. Typically, that relief is in the form of money and sometimes, injunctive relief. Among other things, courts and juries typically cannot require apologies, dictate economic 'win-win' creative solutions to business problems, or fully repair hurt feelings or damaged reputations. Mediation, on the other hand, has no such limitations. The participants' abilities to resolve their disputes is limited only by their imagination.

It's Personal

Employment claims differ from ordinary commercial disputes for the fundamental reason that employment issues are routinely linked ' sometimes completely intertwined with ' a person's self-esteem or self-image. Because of the nature of employment claims, the calm dispassionate calculations which often govern commercial disputes are conspicuously absent when it comes to employment and personnel matters. Instead, they are replaced by unhealthy feelings of anger, remorse, regret and vengeance. Breaking through these emotional knots can sometimes become impossible, if they are not addressed fairly early on, because people far too frequently become emotionally 'vested' in their positions. Mediation, particularly if conducted soon after it appears that the parties cannot resolve matters themselves allows them to take another look at their problem in a calm, more reflective setting with the help of a trained impartial observer.

It's Safe

Courtrooms and judges are often anxiety-producing. The mediation forum is a more relaxed environment. While it is always a good idea to come well prepared to a mediation, the profound stress attendant to litigation is noticeably diminished and, in some cases, absent during the mediation process. If the mediation is successful, parties feel comfortable sharing both the strengths and weakness of their cases with a trained mediator who will convey to the other side only that which he or she is authorized to do. This environment enables parties to reveal the pros and cons of their respective cases in an environment which is non-judgmental, insofar as the mediator is concerned, and very conducive to resolving disputes.

It Can Be Cathartic

As noted, employment claims are unique in that employees and employers may become wrapped in their positions and convinced of the moral (and legal) certainty of their positions. What mediation permits is the simple opportunity to vent. The alone may facilitate a proper solution of a matter that never would have been resolved without such an opportunity. Similarly, mediation facilitates and encourages parties to express regret to the extent that their actions have caused damage or hurt feelings, in a way that does not prejudice their positions in the future. This cathartic opportunity allows participants to get 'unstuck' and, therefore, free to explore creative solutions to an employment problem.

It's Informative

One of the biggest impediments to resolving disputes is the absence of an opportunity to exchange information freely in a constructive environment. This perceived inability to exchange information often leaves to enhanced distress. Mediation allows information gathering. Employees, for example, who are utterly convinced that their termination was the result of an illegal or wrongful action, may learn that there is another explanation that never occurred to that individual. Similarly, employers can learn during the mediation process how the indifference of poorly trained managers can create a climate of mistrust. This ability to share and obtain information is useful, not only in evaluating whether there is actual liability, but also in assessing the prospect for damages. Far too frequently, employees file suit without any appreciation of their ultimate damages or even whether they have been economically damaged at all. Mediation allows parties to shed light on what is truly in dispute, and to determine whether litigation (or, as the case may be, additional litigation) is justified economically or otherwise.

It Usually Creates Positive Momentum

Many employment disputes never settle (or are never in a position to be settled) because such a terrible momentum of negativity and distress has been created by one or both parties. This momentum includes destructive labeling, posturing, and threats. Mediation, on the other hand, encourages the exchange of information and constructive solutions to what once seemed insurmountable problems. The exchange of information, as well as the discussion of possible successful outcomes, often changes the climate of distrust and instead creates a positive momentum toward exploring avenues of success rather than paths of destruction. As a result, even cases that are not settled during the initial mediation session may resolve later, because the parties have decided to devote their time and energy towards resolution rather than litigation. In short, they have interrupted patterns of negativity and replaced them with patterns of cautious optimism about the resolution of their dispute.

It Makes Dollars and Sense

The litigation costs associated with employment claims are very high and becoming increasingly more expensive. It is not uncommon for cases to cost $50,000 to $100,000 (and more) through and including trial. The economics of a possible settlement can be shattered if efforts to mediate are not made early. Regrettably, many employment disputes have been permitted to proceed down a lengthy and expensive litigation path, because parties bypass the opportunity to mediate early in a case when most of the information was either available or readily available, if the parties had simply chosen a different, more constructive approach.

Marc R. Engel is a shareholder at Lerch, Early & Brewer, Chartered, where he is a member of the firm's employment and litigation groups. Engel advises clients on employment issues, litigates and mediates employment and business disputes, and counsels companies and organizations on litigation avoidance strategies. He has been selected by the Circuit Court for Montgomery County to be on its approved list of mediators for civil litigation and employment matters. He can be contacted at 301-986-1300 and at [email protected].