Overview: Mediation is a typically voluntary and occasionally involuntary dispute resolution process utilized by attorneys and federal and state court systems to determine if the parties can amicably resolve their differences before proceeding with litigation. It can be voluntary in the sense that one party will ask the other to participate in mediation or mediation will be encouraged by regulatory bodies like the EEOC. It can also be involuntary in the sense that some state court systems order the parties to participate in mediation before their cases can proceed.
Importantly, however, a mediator's final decision is almost never binding on the parties, meaning that the parties may still opt to proceed with litigation if they deem mediation unsuccessful. In that regard, mediation can still be a tremendously useful tool in helping parties to assess the strength and/or the value of their claims before they approach a final, binding resolution.
For HR professionals, mediation may involve the exchange of discovery materials, written statements called "affidavits" attesting to the validity of claims or the whereabouts of evidence and even verbal examinations, similar to depositions. These "discovery" tactics are utilized in tandem with in-house or external counsel to help the employer achieve its desired result during mediation, either to settle a case or to drive down the plaintiff's asking price.
Trends: More and more employers are moving toward early mediation as a tool to prevent litigation or, if litigation begins, to end it quickly and cost effectively. As a pre-litigation tool, mediation in the workplace can be tremendously effective in addressing employee complaints and resolving disputes before they fester and become unmanageable.
As an early-litigation tool, mediation can save the employer time and considerable litigation costs if the process is successful in encouraging the parties to work out their differences amicably. In that regard, the sooner mediation begins the better chance the employer has to reduce its costs and exposure to litigation.
Author: Michael Jacobson, JD, Legal Editor
Given the consistent increase in the number of retaliation claims brought by employees, employers may be left wondering what they can do to reduce or prevent retaliation claims. There are many tools at the employer's disposal to properly handle complaints of unethical, wasteful or illegal practices in the workplace and many steps employers can take to identify problematic employees before they proceed with retaliation claims.
On January 28, 2013, the Equal Employment Opportunity Commission (EEOC) released fiscal year 2012 statistics on employment discrimination charges filed with the agency. Retaliation (37,836) was the most frequently filed claim, followed by race discrimination (33,512) and sex discrimination (30,356), which includes sexual harassment and pregnancy discrimination. Retaliation charges remain a top concern for employers and have since 2010, accounting for 38.1% of all charges in 2012.
Employment law is moving fast and employers that are not proactive may find themselves lost in a dust of unwinnable lawsuits and grave compliance issues. To prevent that, employers should be proactive, including maintaining an active watch list following trends in state and federal employment law. Increased employment litigation, mandatory E-Verify laws, criminal history background checks, social media and paid sick leave are a few items that have earned a spot at the top of employers' 2012 watch list.
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HR guidance on the benefits of mediation as a dispute resolution tool, the HR professional's responsibility during mediation and the potential to use mediation as a pre-litigation tool.
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