Since it is spooky season, today’s blog is about something that seems to intimidate folks from time to time—mediation. As an employee involved in an active employment dispute, you may hear your attorney advise you to consider mediation. While this may sound like a scary, daunting event, mediations are a highly valuable tool for those involved in workplace conflicts. 

Mediation is one of the most efficient methods of resolving a pre-litigation dispute in advance of court. Mediations allow for parties to discuss their dispute in a less adversarial environment. I’ll walk you through the pre-litigation mediation process, the benefits, and what to expect as a Texas worker.

What is Mediation?

Mediation is a voluntary process in which the parties engage a neutral third-party to support them in obtaining a mutually agreeable resolution. At our law firm, our clients are involved in anything from discrimination matters to workplace sexual harassment to whistleblower retaliation claims. We often advise our clients to consider mediation with their employer or former employer because of the benefits associated with efficient, early resolution. Our opponents are typically interested, too, for many of the same reasons.

The Road to Resolution 

1. Choosing a Mediator

The first step in the process is to discuss mediation with the employer or former employer. If the parties both have interest, the parties must then agree on which mediator to select. 

When going with a private mediator, we counsel our clients to consider mediators with expertise in conflict resolution and employment law disputes. It is essential to choose someone both parties feel comfortable with to ensure agreement and an effective mediation. 

The EEOC provides free mediators as well. These mediators are normally assigned to the parties at random, once both sides express interest in using an EEOC mediator. 

2. Initial Preparation

Prior to the mediation, you and your attorney will:

• Gather & Review the Evidence: We review all the relevant information we have in your dispute, including all the documents and other materials you have that support your position. We then consider all the arguments available to both sides. We finally relay our thoughts on the case with our clients and discuss various perspectives and strategies for the mediation. 
• Discuss Housekeeping: Before the mediation, you and your attorney will discuss general things like dress and demeanor. You’ll want to be very professional in both respects. We’ll also review how the selected mediator normally hosts his/her/zer mediation. Our employment attorneys know most of the mediators in the area and have some level of insight into how they host and manage their mediations. Different mediators have different styles and expectations for how it will go. We prepare our clients with each mediator’s style in mind whenever possible.
• Clarify Objectives: We’ll review what you hope to achieve from mediation and discuss realistic expectations.

3. The Mediation Session

The mediation session itself usually follows a structured format.

• Opening Statements: Some mediators have the parties meet in a room at the top of the mediation. In today’s technologically savvy world, many mediations happen via Zoom as well. For a Zoom mediation, the mediator will move the parties in and out of “Zoom Rooms.” If the parties are meeting together first, each party has the opportunity to present their side of the dispute and their view of the case. It is a chance to share perspectives and establish context. 
• Private Caucus: The mediator then separates the parties into different rooms or Zoom Rooms. The mediator conducts a private session with each party. These discussions allow the mediator to provide guidance on each party’s perspectives and counteroffers. The private caucusing also allows each side to speak with the mediator about the strengths and weaknesses of their case. The mediator may use these sessions to explore potential compromises.
• Negotiation: The mediator works to help both parties identify common ground and negotiate back and forth to a resolution. Mediators may offer more creative solutions for the parties to satisfy everyone’s objectives.

4. Reaching an Agreement

If the parties can reach a consensus, they then proceed to drafting and executing a settlement agreement. We review these documents carefully with our clients before execution to ensure that they understand the terms.

Benefits of Mediation

• Cost Effective: Mediation is typically far less expensive than litigation—for both sides—as it involves far less in legal fees and associated costs. Private mediators do not mediate for free. However, their fees are likely much less than what it will cost both sides to retain counsel for litigation. Court filing fees alone can make up a good percentage of the cost of a private pre-litigation mediator. For those employees or former employees with pending Charges before the EEOC, EEOC mediators are free.
• Efficient: Should a mediation result in settlement, as most do, you can avoid spending years on litigation and the stress that comes with fighting in court. Mediations are typically finished within a single day. The settlement paperwork doesn’t take too much time to review and execute either, assuming the terms are all reasonable and acceptable for both parties. Mediations are an effective tool for prompt resolution and closure. 
• Confidentiality: Mediation sessions are confidential, protecting the parties from public exposure and potential reputational harm. Lawsuits, on the other hand, are not private for either side. 
• Control Over Outcomes: Unlike in court, pre-litigation mediation allows the parties to have more control over the outcome. 

Conclusion

And there you have it! Mediations are not so spooky after all. They offer a constructive path for resolving employment disputes without the need for litigation. Stay open-minded, be willing to remain resilient during the back and forth, and press on to a mutually agreeable resolution.

If you need an experienced employment attorney to represent you in an employment dispute, give us a call.