How to Mediate a Settlement With an Employer

Disputes in the United States are generally resolved through mediation, arbitration or litigation. Mediation is the least formal of the three, and involves the disputing parties sitting down to discuss the dispute with a neutral third party mediator. The mediator mediates the dispute by helping the parties see each other's point of view and by suggesting a nonbinding compromise. Arbitration is a somewhat more formal process, where both sides present their evidence and a binding decision is made by the arbitrator. Litigation is the most formal of dispute resolution and involves filing suit, going to court and having a decision rendered by a judge or jury. Mediation has become popular as an alternative dispute resolution method in the workplace.

Instructions

1. Read your employment contract documents or employee manual to determine if mediation or arbitration is mentioned as the primary dispute resolution method. Almost all large businesses now mandate mediation or arbitration for workplace dispute resolution, and many small businesses are following the trend. Alternative dispute resolution methods are almost always cheaper than going to court for both parties, and are additionally beneficial to employers in that the goal is compromise. Large "punitive damages" are almost never awarded, as happens frequently in jury trials.

2. Research to see if the issue underlying your dispute with your employer is suitable for mediation. While alternative dispute resolution laws have been broadened over the last few decades and most workplace disputes fit in these broader categories, some cases involving larger questions of public policy could possibly be excluded from the requirement for mediation in order to set a precedent. If you have a strong case against your employer, most attorneys would rather go to court rather than mediation because of the potential for a significantly larger financial award.

3. Contact the human resources department and inform them you are filing a claim for mediation once you have determined that mediation is the mandatory method for dispute resolution. If mediation is not mandatory at your workplace, contact your employer to let then know you have an unresolved dispute and that you are considering taking legal action, but would like to request mediation first.

4. Fill out the necessary paperwork to begin your claim for mediation according to company policy or work with your employer to choose a mediator/mediation panel that is satisfactory to both parties if mediation is not the usual policy.

5. Attend all mediation sessions, present your side of the dispute in detail with as much supporting documentation as possible, and carefully consider the mediator's suggestions for a compromise or settlement.

Tips & Warnings

• Remember that arbitration is legally binding but mediation is not, so if your dispute is resolved by arbitration the decision is final (with no appeal in most cases), but if your dispute is mediated you do not have to accept the mediator's suggestion and can decide to file suit in court.

• Consider contacting an attorney and/or the Equal Employment Opportunity Commission before you initiate a claim for mediation or arbitration to make sure you maintain all your legal rights.

• Mediation expenses are usually split by the parties. Some employer arbitration contracts require the losing side to pay for the arbitration expenses, and the losing side very frequently has to pay the court costs for both sides in disputes that result in litigation.

References

• FindLaw; Mediation vs. Arbitration vs. Litigation; What's The Difference?
• The Legal Aid Society-Employment Law Center: Arbitration of Employment Claims
• University of Rhode Island; Do Formal Mediations Programs Work in the Settlement of Employer-Employee Disputes?; Karen Breggren
• Dispute Resolution Specialists: Mediation of Workplace Tiffs Is the Way of the Future