Marcus offered her tips on succeeding with mediation at a recent meeting of the Employers’ Counsel Network (ECN) in Springfield, Massachusetts. The Employers’ Counsel Network includes the attorneys from each state who write BLR’s state employment law newsletters. Marcus is one of the EEOC mediators based in the Boston office of the EEOC.
Sometimes it’s little things that can derail a mediation before it gets started. Perceived symbols of wealth are particularly problematic, says Marcus. You should know that an employee’s perceptions of attorneys can be a roadblock.
Therefore, Marcus says, when in mediation, you should be mindful of how the stage is set, including:
- Perceived symbols of wealth. For example, an attorney who casually tosses his BMW key ring on the table for all to see may offend a complaining party who can’t afford a car. Or how about the company representative who casually mentions “we’re going to our house on the Cape for the weekend.”
- Careless chatter. Be mindful of chatter, says Marcus. For example, attorneys who know each other chatting about frivolous things may upset an employee who is sitting there worried about his or her livelihood.
When the Employer Is Right
Sometimes, employers get frustrated and might not want to participate in mediation because they feel they are in the right. But that means an EEOC investigation. And the EEOC thinks the party with the information will succeed. So an EEOC investigation can become tedious as the investigator asks for records, documents, and other information.
Mediation can help get the information out and avoid the hassle of an investigation.
If an employer says it doesn’t want to spend any money because it has done nothing wrong, there are many settlement options besides money, such as:
- Reference for other jobs,
- Training,
- Going to a conference,
- Opportunity to lead a meeting.
- Taking a warning out of the employee’s personnel file.
- A token of appreciation ($50 gift certificate).
- Flexible schedule.
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More Marcus Tips for Mediation
- Mediation can be good for bigger employers, where people can feel disconnected, because sometimes employees just want to be heard.
- One thing to be careful about when considering what you might do to make this one employee happy in mediation is what sort of culture you have back at the office, says Marcus. Will word travel so that everyone knows what the employee got? Will that cause resentment among other employees?
- If an employer says, “I won’t spend money on this,” but will agree to think of nonmonetary alternatives, it is OK to go into mediation with that. But if the employer can’t come up with anything to “give,” mediation probably isn’t the right choice.
- Interestingly, the mediator might well be the first person to realize that it’s actually time for the employer and the employee to separate and be able to help find a way to do that safely for the employer.
- In the premediation stage, the mediator knows to take the employee’s demand with a grain of salt because it will be slanted in the employee’s favor. If the employee is pro se, it can be hard to sort out from the original demand what will make the employee happy since he or she doesn’t know the rules of negotiation or “how to play the game.”
- Just because someone is individually named in a complaint, you don’t have to bring the person into mediation (for example, a loudmouth company owner). Similarly, just because someone isn’t a named party doesn’t mean you should exclude the person. (For example, if the spouse of the employee really makes the decisions, consider having the spouse in the mediation.)
- When going to mediation, be prepared for low-tech. Federal buildings often don’t have wi-fi, printers, available copy machines, coffee, etc.
- Before going into mediation, know who has final say over your agreement and be ready to explain. For example, if you represent a school board that must approve the agreement, you can either tell the mediator “The board will meet on X date to approve this plan” or, better yet, go to the board ahead of time and get the green light for a range on the settlement so that you know what is approved before mediation.
- Taking notes not only helps you remember what was said but also gives the impression that you are fully engaged in the issue and helps to avoid any fidgeting and eye-rolling.
- Finally, says Marcus, always be nice to the complaining party. Offer your hand for a handshake, even if you think it will be ignored. If it is ignored, be nice. Being adversarial only worsens the problem and makes the complaining party want to go harder.
Mediations over pay and whatever—one more thing for comp and benefits managers to cope with. Meanwhile, “Maintain internal equity and external competitiveness and control turnover, but still meet management’s demands for lowered costs.” “No more cost increases for health care.” Heard those before?
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