Most employers are at least somewhat familiar with binding arbitration, and many know the ins and outs of litigation far too well. But you may not know as much about workplace mediation—another process that might keep you out of court and give you more flexibility than an arbitrator’s ruling. Here’s a look at the mediation process and resources for finding a mediator.
What Is Workplace Mediation?
Mediation is a conflict resolution process in which an impartial third party helps the participants negotiate a settlement. A mediator, unlike an arbitrator, does not impose a decision on the involved parties but instead helps them work out their own solution. Also, while arbitration is usually binding, mediation is not. The employer and employee are responsible for carrying out any understanding they reach; no one else will force them to do so.
The Pros
Mediation is ideal for workplace disagreements or misunderstandings that are in the early stages. For example, it can be a useful way to resolve a salary dispute or a manager-employee conflict that’s blocking a productive working relationship. Nipping problems like these in the bud can help prevent full-blown lawsuits later on and help you retain good employees who might otherwise become so unhappy that they leave.
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Because mediation is nonadversarial, it can help preserve goodwill in a way that a lawsuit can’t. Plus, mediation isn’t subject to the strict conditions required to make an arbitration agreement stick in California.
The Cons
On the other hand, because it’s nonbinding, mediation typically won’t work unless both parties are pleased with the outcome and willing to follow the resulting agreement. Mediation can be time-consuming, and there’s always the chance that litigation may be necessary down the line anyway. But considering the time, money, and risk involved in lawsuits, mediation is usually worth a shot if you think there’s a chance of working things out.
The Mediation Process
These are the key steps involved in most mediations:
- Introduction. The mediator makes sure both parties understand the mediation process.
- Presentation of viewpoints. Each side gets a chance to present their uninterrupted version of the facts.
- Definition of problems/discussion of issues. After listening to both sides, the mediator helps the parties clarify the issues and facilitates discussion of possible solutions.
- Private meetings. The mediator may meet with both sides privately to discuss areas of concern and ideas for resolution.
- Negotiation and agreement. If possible, the mediator and the parties hammer out a solution that works for both sides.
- Conclusion. The mediator writes down the details of the parties’ agreement. They may sign it or take it to lawyers to look over first. If both sides don’t sign the agreement, the mediator will write down what took place and advise the parties of their possible next steps—usually additional mediation, arbitration, or litigation.
Mediation Resources
Some helpful resources for finding a mediator or learning more about the mediation process include: the Southern California Mediation Association (www.scmediation.org); the Association for Dispute Resolution of Northern California (www.adrnc.org); and Mediate.com (www.mediate.com). Also, some state agencies offer mediation programs to help resolve employee complaints, such as the California Department of Fair Employment and Housing (www.dfehmp.ca.gov).
Finally, the American Arbitration Association, one of several private arbitration services, offers free publications on mediating and arbitrating employment disputes. Go to www.adr.org and click on “ADR Guides.”