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What is Mediation? Who Benefits? Why Should Employers Consider It?
Updated: June 27, 2023
By Daniel Conklin, Founder & CEO of Conklin & Associates, LLC
Whether you have been in business for 3 months or 30 years, unresolved employee/employer disagreements and/or disputes are inevitable. These unresolved disagreements usually begin at the termination or separation from employment stage and very often lead to costly legal battles that can drag on for months or even longer. The great news is that there is a solution that starts at the point of employee onboarding and provides a mutually beneficial process for both employers and employees should a potentially legal dispute ever arise.
What is Mediation?
Mediation is a form of 'Alternative Depute Resolution' (ADR) which involves an impartial third-party (Mediator); the Mediator assists both parties in negotiating a jointly acceptable resolution of issues in a dispute. Mediation is an effective, informal alternative to the traditional investigative and litigation process. The mediator has no authority but rather listens to both parties and helps guide them to a mutual agreement.
Who Benefits?
Everyone! Mediation benefits both the employer and the employee as it is an alternative to litigation and saves tens of thousands of dollars in legal costs. According to the U.S. Equal Employment Opportunity Commission, here are '10 Reasons to Mediate'
Mediation is free - EEOC's National Mediation Program is available at no cost to the parties. Either party can request mediation without an offer from EEOC. As long as both parties agree to participate, EEOC will consider the charge for mediation.
Mediation is fair and neutral - Parties have an equal say in the process and they, not the mediator, decide the terms of the settlement. There is no determination of guilt or innocence in the process.
Mediation saves time and money - Mediation usually occurs early in the charge process, and many mediations are completed in one meeting. Legal or other representation is optional but not required.
Mediation is confidential - All parties sign a confidentiality agreement. Information disclosed during mediation will not be revealed to anyone, including EEOC investigative or legal staff.
Mediation avoids litigation - Mediation costs less than a lawsuit and avoids the uncertainty of a judicial outcome.
Mediation fosters cooperation - Mediation fosters a problem-solving approach to complaints and workplace disruptions are reduced. With an investigation, even if the charge is dismissed by EEOC, underlying problems may remain, affecting others in the workforce.
Mediation improves communication - Mediation provides a neutral and confidential setting in which the parties can openly discuss their views on the underlying dispute. Enhanced communication can lead to mutually satisfactory resolutions.
Mediation helps to discover the real issues in your workplace - Parties share information, which can lead to a better understanding of issues affecting the workplace.
Mediation allows you to design your own solution - A neutral third party assists the parties in reaching a voluntary, mutually beneficial resolution. Mediation can resolve all issues important to the parties, not just the underlying legal dispute.
With mediation, everyone wins - An independent survey showed 96% of all respondents and 91% of all charging parties who used mediation would use it again.
Should Employers Consider a Mediation Policy?
YES! Since 2008 Mediation Agreements have had a success rate of 70-80% in resolving disputes between employers and former employees. In addition, Mediation is a very efficient process that saves time and money. According to a study conducted by the EEOC, mediations usually last for approximately 3-4 hours. However, this may vary depending on the facts of each case.
Can information revealed during a mediation session be used during an investigation if the charge is not resolved during mediation session?
No! According to the EEOC, since the entire mediation process is strictly confidential, information revealed during the mediation session cannot be disclosed to anyone including other EEOC personnel. Therefore, it cannot be used during any subsequent investigation.
How Can Employers Implement a Mediation Agreement Policy?
If an employer does not have an HR professional on staff who is experienced in writing such policies, they should contact an experienced HR Consulting Firm to assist them. Mediation should be introduced as part of an organization's overall approach to people management. There are many ways mediation can be included in policies and procedures. For example, it could be:
Written into employment contracts and/or employment handbooks;
Written into the bullying and harassment policy;
Included as part of the grievance or dispute resolution procedure.