Is Mediation the Golden Opportunity to put a Square Peg in a Round Hole?

I learned something last weekend about laws in other nations when I had drinks with a colleague from the U.K. and another from Ontario, Canada at the Board meeting of the International Academy of Mediators. In both of those Countries, the law protects an employee from termination unless there is cause (poor performance or wrongful conduct) or a legitimate financial need to downsize. Otherwise, the Company is legally bound to pay a set amount of severance (in Canada I think it was 2 years and in England I think it was 1 month per year of service). In the U.S., a laid off employee has to establish that the termination was wrongful because it was discriminatory, not just a bad decision. Lawyers have to find some “protected status” in order to bring these claims–and the employee otherwise has no legal right to assume that they can keep their jobs even if they are performing adequately. All employment is “at will”. It occurs to me, then, that it is little wonder why so few employee’s cases can actually win at trial and why, instead, mediation is an opportunity to suggest at least the possibility that this was wrongful termination, even if it’s awfully hard to prove. It’s also an opportunity for the employer to do what is considered fair and even required by law in other jurisdictions. Termination of employment without warning or payment of any severance where there is no wrongdoing has such grave consequences to the employee and his/her family. Isn’t it worth considering mediation in every matter where inherent fairness is at stake–even where the law says something to the contrary?

                       

Jan Frankel Schau

Attorney Jan Frankel Schau is a highly skilled neutral, engaged in full-time dispute resolution. Following a successful career spanning two decades in litigation, she has mediated over 700 cases for satisfied clients. Ms. Schau understands the nuances of trial and settlement practice as well as client relations and balancing the… MORE >