Why Parties Increasingly Turn to Employment Mediation ©

Corporations, governmental agencies, and private citizens alike are increasingly turning to mediation to assist parties in dealing with employment disputes. In fact, the U.S. Equal Employment Opportunity Commission in recent years formally made voluntary mediation an integral part of its process. Even some large corporations have gotten into the act of providing for mediation services through their personnel policies and procedures. This article is intended to explain what mediation actually is and why it has become so popular.

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What Mediation Consists Of?

Mediation is a voluntary process by which the parties -- in the employment context, the employee and the employer -- agree to go to a third party neutral to see if a resolution can be found without having to go to trial. A mediation usually includes the following stages: (1) Opening joint sessions in which both sides appear before the mediator and each other, and are given an opportunity to present their view of the case; (2) Private caucuses in which the mediator goes back and forth through a form of shuttle diplomacy to establish the needs and wants of both sides and to see whether a common ground can be reached; and (3) Closing the mediation once a settlement has been reached by carefully reviewing the terms of the settlement with both sides.

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Three Reasons for Mediation´s Rising Popularity

(1) High Success Rate

The number one reason that mediation has become so popular in recent years is because of its undisputed high success rate. Many mediators report anywhere from an 80-95% success rate. The high success rate of mediation is tied into the fact that it is usually voluntary. That is, in most mediations, no one is forcing either side to attend, and in fact the reason both sides have agreed to attend mediation is because they are interested in seeing whether the dispute can be settled reasonably, saving them exorbitant expenses, time commitments, and the uncertainty of litigation.

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(2) Substantial Reduction of Expenses and Time

Depending on where you live, the time it takes between filing a lawsuit and getting to trial can take anywhere from one to four years. The expense involved in litigating the case -- depending on the attorney fee agreement -- can range anywhere from $10,000 to $50,000 in costs to $250,000 in attorney´ fees and costs. If you are an employer, and the plaintiff prevails on a federal anti-discrimination claim, you will not only be required to pay your attorney´ fees and costs, but also the fees and costs of the other side. If you are an unsuccessful former employee, you will not only be out your own costs and whatever fees you agreed to with your attorney, but you also run the high risk of being responsible for the employer´s costs. By comparison, the parties normally split the cost of the mediator. And it is not uncommon for one party to agree to pay for the costs of the mediation as part of the settlement.

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(3) Elimination of Uncertainty

Taking a case all the way through trial is a lot like playing roulette, because you do not know how well your witnesses will perform at trial, nor do you have any control over the make-up of the judge or jury that will hear your case. So, in addition to having to worry about the huge expense involved in getting the case to trial and the risk of having to pay the other side´s costs or attorney´ fees if you should not prevail, you also have to deal with the prospect of trial and perhaps losing. Then, even when one side wins at trial, it is not uncommon for the losing side to appeal, which often takes and additional one to two years for a decision. In short, there is no certainty in the outcome of litigation. The only thing that is certain is that it will be expensive and will likely take an emotional toll along the way.

By contrast, one of the huge advantages of mediation is that it eliminates the great uncertainty of litigation by providing a certain resolution. It eliminates not only the possibility of losing, but also the prospects of prevailing at trial only to have to wait for the appeal process to run its course, and risking the possibility that the trial result may be overturned on appeal because of a technicality. Perhaps then, the greatest advantage that a successful mediation can bring to both sides is the piece of mind of knowing that the case is truly over.

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Conclusion

As court dockets continue to get congested with multi-year delays, and the expense of litigation continues to soar, you may wish to consider speaking with your attorney or representative about the possibility of participating in voluntary mediation.

Gilbert M. Roman conducts mediations and arbitrations for the American Arbitration Association.

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