Thirty plus years of handling employment disputes of one form or another has led me to reach several conclusions concerning these disputes and how to best resolve them. While mediation is more of an art than a science and no one thing will guarantee success at a mediation, there are a few things to consider that will increase the chances of a successful mediation of an employment claim.

First, mediation should be attempted after sufficient information has been exchanged for both parties to have an understanding of the strengths and weaknesses of their case, but still early enough for both sides to save costs. Without an exchange of information providing a basis for the claims, defenses to those claims and an idea regarding the damages at issue, the mediation will be less effective as the parties will spend the mediation attempting to understand the other side’s position. That said, it is seldom necessary for depositions and document production prior to mediation. One of the best ways to ensure that both sides understand each other is to simply require the parties to exchange the factual portion of the mediation submission to the mediator as well as the opposing party.

Second, selection of a mediator can be very important in the employment case. This means taking into consideration the personality of the mediator as it relates to the personality of the parties, as well as considering the mediator’s substantive experience in handling employment disputes. The parties should seek a mediator with a personality that will assist settlement – not impede it. Given the sensitive nature of most employment disputes, hiring a mediator that understands the volatile nature is invaluable.

Third, from the employer’s standpoint, consider bringing someone the employee liked or respected while employed with the employer to the mediation. And, for heaven’s sake, do everyone a favor and do not bring the alleged harasser to the mediation.

Fourth, parties often wonder whether having a joint opening session is a good idea. While much has been written in the mediation world about this topic, from my experience, opening sessions are a great opportunity for both sides to provide information they feel is important about the claim so that each has a better understanding of the issues. Do not cover up the bad facts and weaknesses of your case. Instead, disclose them early on and create credibility with the mediator and the other side.

Finally, have some rational explanation for your offers and counter offers. Be flexible and willing to listen and do not react emotionally if possible. Never forget that it is the mediator’s job to help both sides to reach a reasonable resolution and doing so takes time. Be patient and creative. While money is always a motivating factor, many employment disputes end up resolving because of non-monetary terms. As I learned in my EEOC training, many employment cases end up resolving with an apology being as important as any other term.

My role as a “neutral”, to use the official jargon, necessitates that I am balanced in order to resolve conflict in the workplace and elsewhere. Some may joke that I am far from balanced, however, I take pride in my ability to be balanced when it comes to the subject of mediation or other forms of alternative dispute resolution in the workplace. The simple truth is this: Mediation works. It saves an organization time and money, and it is not something that should only happen when a formal complaint or lawsuit has been filed. Indeed, the closer to the origin of the conflict or dispute matters can be addressed, the higher chances there are to save both time and money.

The cost of conflict to an organization is high. Defending an employment-related lawsuit can easily approach $100,000 in legal costs alone. While employment practices coverage is fairly common these days, many cases (an estimated 81% by some sources) result in no payment by the insurance carrier. In other words, it is the EMPLOYERS deductible/retention money that is the first to go towards resolution or defense costs. The time spent by HR and other upper management can be staggering and have significant impact on the company. The average duration of an employment matter has been estimated to be 275 days.

The good news is that the vast majority of organizations recognize the cost-control effectiveness of alternative dispute resolution – a number on the rise since 1997, according to a study by Cornell University and Price Waterhouse. Nearly 90% of organizations responding to the 1997 study reported having used mediation as a means of resolving conflict in the prior three years. In addition to saving time and money, organizations have learned that allowing parties to resolve disputes themselves, with the assistance of a mediator, preserves working relationships, results in more satisfactory settlements, and was all-in-all a more satisfactory process.

Trained HR professionals can and should mediate disputes in the workplace, particularly those involving: personality conflicts, poor communication, strong emotions, misunderstandings, employee leave, benefits and pay are at issue. As always, however, if you are in doubt about you or your organization’s ability to mediate a particular conflict at hand, I urge you to seek the advice of your organization’s employment attorney.

When is it risky for the mediation to be handled by internal HR professionals? Because mediation is a voluntary process between the participants, when one participant refuses to allow HR to mediate, then it is time to see if an outside mediator would be a viable alternative. Another situation would be when HR cannot be balanced, or neutral, due to an obvious conflict of interest, or when HR’s impartiality is called into question on the particular matter at issue. Perhaps most importantly are those situations which have triggered the organization’s legal duty to investigate, or when the complaint/dispute is between the employee and the organization. In those situations, the organization is better off enlisting the services of an outside neutral mediator to work towards an amicable resolution.

Please feel free to contact me for further questions or discussion to learn how mediation can benefit your organization – saving your organization both time and money.

Preparing a workplace dispute resolution policy is not difficult, but it does require some thought by the employer and HR professional.

First and foremost, there needs to be some thought put into the decision regarding whether to even have such a policy. The primary motivating factor for nearly all employers is the time and cost of employment litigation versus handling workplace disputes internally. This internal dispute resolution is either handled by HR or through the use of an outside mediator or arbitrator. The latter has proven time and again to be a better and more efficient system.

Once the decision is made to adopt a workplace dispute resolution policy, the employer must determine what claims made by the employee will be covered by the policy and what claims will not be covered. While the list of claims that will be covered is quite lengthy, there are generally only a few claims that a policy will exclude. For example, claims for workers’ compensation and unemployment benefits must be pursued through a state administrative agency and are not properly governed by an internal dispute resolution policy. Often times ERISA/pension plans have their own internal dispute resolution plans which must be followed.

Further considerations in drafting such policies includes identifying the circumstances under which an outside mediator will be retained. Most sample policies provide that if a matter cannot be resolved satisfactorily by the HR professional, an outside mediator will be hired, at the employer’s expense, to attempt resolution of the claims. Should that effort fail, many policies then provide for binding arbitration by an arbitrator knowledgeable in employment law. The American Arbitration Association has a list of trained employment arbitrators and can assist the employer in developing the rules for arbitration and the administrative handling of the claims. As with mediation, the employer will bear all the expense of any arbitration.

Although adopting a dispute resolution policy proves to be beneficial, identifying those employment situations requiring dispute resolution, either internally or through the use of a mediator, is more of an art than a science. I am always here to provide assistance, so please let me know if there are questions or if you would like to explore this topic further.

Likely the most important skill for a neutral to possess when trying to resolve a workplace dispute, or any dispute for that matter, is the ability to actively listen. While it might be logical to conclude that speaking and listening equally share the communication spotlight, this is not the case. Recent U.S. Department of Labor studies have shown that over half of all communication is accomplished through listening. Listening is more than just waiting for your turn to talk. Active listening has been described as hearing both the words and the music. Stated another way, active listening involves the mediator/neutral “…listening to and feeding back an interviewee’s emotions.” The Mediation Process, Fourth Edition, Christopher W. Moore.

Why is active listening a crucial skill to develop? In my experience there are two main reasons. First, most workplace disputes involve, at least on some level, a belief by one party that they have not had an opportunity to be heard or to tell their version of events. Everyone wants their “day in court” so to speak – it is human nature. Active listening helps achieve that. Secondly, workplace disputes are typically filled with emotions, often times negative emotions. Any time an individual’s livelihood may be at stake, negative emotions are understandable and expected. The sooner the parties to the dispute can feel that their version has been heard and understood, the closer the matter is to being resolved. Similarly, the sooner the negative emotions are released, the sooner focus can be placed on a rational solution to the dispute. Active listening is a skill essential to successful resolution of the workplace dispute. Outside of workplace disputes, active listening can help with interactions with colleagues, friends, and clients. Try focusing on listening to understand, rather than listening to respond – it will make a significant difference in nearly every interaction.

I will explore the seven steps to active listening in my next post. As always, please let me know if there are questions.
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Considered by many scholars to be the most comprehensive source on mediation, Christopher W. Moore in The Mediation Process describes the steps to active listening in the following manner.

First, the mediator must listen to what the party is saying and determine the emotion the party is feeling. Is it frustration? Anger? Fear?

Second, select the word or words that reflect what the interviewee is feeling. Care must be taken not to minimize the feeling or blow it out of proportion. Disempowering the interviewee will also be counterproductive so saying “You are feeling really weak and helpless…” is not a good strategy.

Third, tell the interviewee what you have heard in the words and language selected. If more than one emotion is being expressed give feedback as to all the emotions.

Fourth, wait for the response from the party. Be patient and do not fill the silence with more from your own mouth. The response will either confirm the accuracy of the emotion expressed or provide further clarification of those feelings.

Fifth, if the emotions are confirmed encourage the party to talk more about those feelings.

SIxth, if the mediator has not accurately understood the emotions being expressed obtain further clarification from the interviewee. In essence, start over again at the top of this list.

Finally, it may take several attempts to accurately describe the emotion felt and do not be afraid to spend the time and effort necessary to accurately understand what is going on. Do not, however, force this process on the interviewee. If you encounter resistance, move on.

Like most skills, active listening takes practice. It may very well be the most important skill a mediator can possess for resolving disputes. Let me know if you have any questions.