Mediation

Mediation is a private process where a neutral third person called a mediator helps the parties discuss and try to resolve the dispute. The parties have the opportunity to describe the issues, discuss their interests, understandings, and feelings; provide each other with information and explore ideas for the resolution of the dispute. While courts can mandate that certain cases go to mediation, the process remains “voluntary” in that the parties are not required to come to an agreement.

The mediator does not have the power to make a decision for the parties but can help the parties find a resolution that is mutually acceptable. The only people who can resolve the dispute in mediation are the parties themselves.

There are several different ways that a mediation can proceed. Most mediations start with the parties together in a joint session. The mediator will describe how the process works, will explain the mediator’s role and will help establish ground rules and an agenda for the session. Generally, parties then make opening statements. Some mediators conduct the entire process in a joint session. However, other mediators will move to separate sessions, shuttling back and forth between the parties. If the parties reach an agreement, the mediator may help reduce the agreement to a written contract, which may be enforceable in court.

Our practice offers mediation for nearly any type of conflict, dispute or lawsuit, including:

• Personal Injury & Wrongful Death
• Product Liability
• Police Misconduct
• Medical Malpractice
• General Liability
• Civil Rights
• Contractual Disputes
• Employment/Wrongful Termination
• Business to Business Disputes
• Partnership Dissolutions
• Discrimination
• Construction Defects (and performance issues)
• Professional Liability
• HOA Disputes
• Civic and Organizational Disputes
• Landlord/Tenant

Benefits of Mediation:

Cost

While a mediator may charge a fee comparable to that of an attorney, the mediation process generally takes much less time than moving a case through standard legal channels. While a case in the hands of a lawyer or a court may take months or years to resolve, mediation usually achieves a resolution in a matter of hours. Taking less time means expending less money on hourly fees and costs.

Confidentiality

While court hearings are public, mediation remains strictly confidential. Only the parties to the dispute and the mediator or mediators know what happened. Confidentiality in mediation has such importance that in most cases the legal system cannot force a mediator to testify in court as to the content or progress of mediation. Many mediators destroy their notes taken during a mediation once that mediation has finished. The only exceptions to such strict confidentiality usually involve child abuse or actual or threatened criminal acts.

Control

Mediation increases the control the parties have over the resolution. In a court case, the parties obtain a resolution, but control resides with the judge or jury. Often, a judge or jury cannot legally provide solutions that emerge in mediation. Thus, mediation is more likely to produce a result that is mutually agreeable for the parties.

Compliance

Because the result is attained by the parties working together and is mutually agreeable, compliance with the mediated agreement is usually high. This further reduces costs, because the parties do not have to employ an attorney to force compliance with the agreement. The mediated agreement is, however, fully enforceable in a court of law.

Mutuality

Parties to a mediation are typically ready to work mutually toward a resolution. In most circumstances the mere fact that parties are willing to mediate means that they are ready to “move” their position. The parties thus are more amenable to understanding the other party’s side and work on underlying issues to the dispute. This has the added benefit of often preserving the relationship the parties had before the dispute.

Support

Mediators are trained in working with difficult situations. The mediator acts as a neutral facilitator and guides the parties through the process. The mediator helps the parties think “outside of the box” for possible solutions to the dispute, broadening the range of possible solutions.

Mediation of Workplace Disputes

Definition:

Workplace Mediation is a confidential, informal and voluntary process whereby an impartial Mediator facilitates communication between those in dispute to assist them in developing mutually acceptable agreements to improve their future working relationship. Mediation can be effective in both union and non-union settings and at all levels of the organization.

Benefits:

Workplace Mediation offers important benefits to employers and employees alike. It provides fast, creative, mutually satisfactory resolutions. When a dispute is mediated shortly after it arises, the chances of optimal resolution are much greater: the parties’ differences have not had a chance to fester, the situation is generally more fluid, and the parties have more resolution options available to them.

Mediated resolutions work better and last longer than authoritatively imposed resolutions because everyone involved has a stake and buys into them. Moreover, mediation fosters mutual respect through improved communication, and can mend and preserve frayed working relationships even when the parties are extremely hurt and angry.

Mediation within the workplace generally looks very different from mediation that takes place within the context of litigation. The primary goal of workplace mediation is to create an environment which will better enable the parties to work together. Traditional “settlement conferences,” in which the mediator separates the parties and shuttles back and forth between them, often will not be adequate to this task; the parties will need to work through their differences together.

Generally, workplace disputes arise out of a failure by either party or both parties to communicate, understand or consider the needs and interests of the other. People fix their attention on the question, “Who is right and who is wrong?” and become blind to the possibility that both may have a legitimate point of view. The mediator’s task is to open communications between them about the reasons for the positions they have taken with each other, helping both parties to understand as fully as possible their own and the other’s view of the situation. The mediator encourages both to look at the dispute through different lenses: What do they think will work as a practical matter? What do they think will be fair? What do they think will best honor and promote a good working relationship? As the parties gain an expanded understanding of the situation, their ability to work together toward resolution —and after resolution—increases.

The Mediation Process:

An Agreed Mediator will consult in advance with an organizational representative to clarify expectations with respect to confidentiality and reporting back, and to obtain information on the history of the conflict. Next, they will meet with each person individually to understand the issues from each person’s point of view. During these individual meetings the Mediator will also spend time on conflict coaching to assist the parties in adjusting communication styles and ways of approaching or analyzing conflict to help them hear and be heard by the other party. Then the Mediator will bring the parties together for a face-to-face mediation session. The mediation meeting is structured in order to encourage constructive communication and clarification of the main issues and help disputants to come up with mutually acceptable agreements as to the way forward. These voluntary agreements are then usually written up at the end of the mediation and provide the basis for a follow-up meeting with the mediator at some point in the future in order to see how the agreements are working out. Agree recommends a follow-up meeting 1 – 3 months later to provide additional support and to hold the parties accountable to the commitments they made to each other.

When Is Mediation Effective?

Virtually any difference that arises in the workplace can benefit from mediation if the parties are willing to deal directly with each other and if the company provides the resources for mediation. Indeed, over time, a workplace in which mediation is the preferred or presumed dispute resolution mechanism is likely to become a workplace in which colleagues and coworkers need less assistance in working through differences and begin to become natural collaborators. However, there are certain types of workplace conflicts in which any company would be well-advised to offer mediation.  These include:

Sexual Harassment Complaints. People often assume that parties to a sexual harassment complaint cannot work together to resolve the dispute. That assumption can do both parties a disservice. Many hostile environment complaints arise as a result of differences in perception about what is funny or flattering and what is offensive behavior, or they arise as a result of one person’s failure to respect the other or to understand the effect of his or her behavior on the other. If the parties are willing to talk with each other, these complaints can be mediated to excellent conclusions. The employer can save its relationship with both employees and avoid an expensive and painful lawsuit.

Disputes Between Employees. Sometimes interpersonal differences prevent co-workers from functioning effectively together. If the company needs both employees and wants them working together harmoniously, mediation can be very effective. The employees are offered a controlled setting in which to air their differences, guidance in communicating effectively about them, and a chance to make agreements about how they will function together in the future.

Deteriorating performance. A good employee can stop performing well for many reasons. Often, when the manager attempts to address the problem, the employee responds with fear and defensiveness, resulting in further deterioration. Mediation between them can help each understand the other’s needs, requirements and requests and can yield an agreement about how they will work together in the future. Both are more likely to observe such an agreement because both had a hand in creating it.

Terminations. When an employer chooses to terminate an employee even though the termination poses litigation risks, mediation on the terms of the separation can be very helpful. Through the mediation process, the employee has a chance to communicate severance needs and to affect the nature and quality of the severance package, while the employer has an opportunity to eliminate its litigation exposure. Mediation can also be beneficial emotionally: the employee may never agree that the termination was warranted but will more likely feel that he or she had a fair hearing and may come to understand the reasons for the employer’s action. These realizations can make it easier for terminated employees to move ahead with their lives.