eMpLoyMentMedIatIonSaredIFFerent
Mediation & Arbitration Section Chairs : GeraldT . Albrecht – AlbrechtMediation & AmberBoles – BolesLawOffice
thepartiesinan employmentdispute willlikelycrosspaths inthefuture . Mediation oftenminimizes lingeringanimosity .
This article suggests opportunities to capitalize on important idiosyncrasies of employment mediation . Key among those are the high emotions we often find on both sides . Plaintiffs feel disrespected and mistreated . Defendants feel wrongfully accused of unfair , unethical , or immoral conduct . Emotions may predominate over the facts and the law . The parties want , and sometimes need , for the other side to understand their perspective .
In this context , it is critical that mediation afford a forum for respectful and open-minded communication . The employer should show a genuine interest in
understanding the employee ’ s position and in fairly considering that , perhaps , it is not without fault . The employee should be open to taking some responsibility for the situation and to the possibility that s / he unfairly attributed bad intentions to the employer .
The contrast with litigation is evident . In discovery , much time and money are spent , and animosity developed , fighting for insights into the other side ’ s perspective . New information is often met with resistance , rationalization , and efforts to diminish its significance . Information is used to prepare for battle . Conversely , at a collaborative
mediation , information may be freely given , can be accepted at its face value , and used to build consensus for resolution .
Another important factor is that employment litigation exposes information about the dispute to public scrutiny , which can cause substantial harm to the reputations and business prospects of all participants to employment litigation , parties and witnesses as well . Employers often prefer that certain information not be shared with customers , competitors , and current or prospective employees .
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