JAMS ADR Blog by Chris Poole
Although the fact patterns of employment cases vary considerably, there is always a common theme. The plaintiffs believe they have been mistreated by their employers, and the employers almost always deny the factual allegations. Consequently, employment mediations tend to be emotionally charged. At the same time, the cases usually involve a complex body of statutory and case law. This requires a mediator who can empathize with the employee and employer, make them feel comfortable and engender trust. At the same time, however, the mediator must understand the applicable law and be able to discuss how it applies to the facts of the case.
Many mediators describe themselves as either facilitative or evaluative. Facilitative mediators provide a forum for communication among the parties and help explore settlement options without expressing opinions or pointing out potential weaknesses in the parties’ cases. Evaluative mediators bring up weaknesses in the parties’ legal cases and perhaps even offer potential appropriate settlement terms.
An effective employment dispute mediator, however, blends the two approaches. She must be able to listen actively to each side’s concerns and empathize with their situation. She should also be able to give feedback to both parties regarding potential challenges regarding their case. Those challenges may relate to legal pitfalls with their case, the stress and potential embarrassment that may be associated with protracted litigation, and the cost and time involved with this type of legal dispute.
Employment mediation also requires a flexible process. Some mediations are most productive when the parties spend the majority of the time in joint session expressing their feelings. Some attorneys wrongly believe that any direct conflict during the course of a joint session is harmful to the overall process, which is usually not true. On the other hand, in a case where an employee feels threatened by the employer, it might be best to conduct mediation primarily or entirely in caucus.