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Employment Mediation: How Long Does It Take?

{4 minutes to read}  This is the third of four blog posts about how long a mediation should be expected to take. Spoiler alert: The answer for each is “It Depends.” The first two blogs addressed commercial and divorce mediations. This one will address employment mediations.

Employment Mediation-How Long Does It Take by Gary ShafferEmployment mediations often have something in common with divorce mediations. The parties have had an ongoing relationship that has fizzled. There is almost always anger and resentment from the plaintiff/former employee, and even from the employer, who typically feels its actions were justified. Think of the spouse who initiates the divorce as the employer and the spouse who wants to remain married as the employee. Like marriages, employers and employees often stay connected even after the relationship has soured.

In divorce matters, even the spouse who prefers not to get divorced is usually aware that the relationship is less than perfect. This is not always true in employment cases, because no one likes discussing problems, so often times problems are allowed to fester, and a termination can seemingly come out of the blue.

I don’t mean to imply that employee lawsuits are brought by employees who were allowed to hang on too long. Just as often, I see cases where, had the employer addressed problems in an upfront and direct way, the relationship could have been improved and an employee could have contributed to everyone’s benefit.

Employment matters therefore may take some time to get resolved. Emotions need to be worked through. Some of that can happen at the mediation and be assisted by the mediator. Time does not heal all wounds, and a fired employee and an employer who believes its actions were justified don’t just get over things. It may take time outside the mediation, or between mediation sessions for parties to move from justifiable anger to something susceptible to a mediated solution.

What can help move an employment mediation along?

  1. Make sure the basic discovery is done. Most employment mediations don’t require too much discovery, since the parties know each other well.
  2. Attorneys need to have hard discussions with their clients. This is cost-benefit analysis stuff with a strong emotional overlay.
  3. Use the mediator to assist in that cost-benefit analysis, and I don’t mean just the numbers. Figuring out back pay is often a matter of simple arithmetic. The mediator can combine the arithmetic with a discussion of hurt feelings, future opportunities, alternative outcomes, and the unpleasant “cost of litigation” — a cost that can go beyond dollars and cents.

Many employment mediations can take a long day, or a few long days, with time in between for the emotions to settle and ideas to germinate. The “it depends” depends on lots of things:

  • Has the employee found new employment?
  • At what salary?
  • Are there alternative sources of income?
  • What benefits were lost, if any?
  • Are there compensation packages that the employee was previously entitled to that go beyond salary and maybe bonuses?
  • Is there a possibility of reinstatement?

This last item is rarely an option, but it should be considered. Because along with “It depends” is “You never know.”

Gary Shaffer
Gary Shaffer
Shaffer Mediation

About Us

An honors graduate of Harvard University and the Cardozo Law School of Yeshiva University, where he also served on the Law Review, Gary brings more than 30 years of litigation and negotiation experience to his practice as a mediator. He has successfully negotiated and mediated resolutions in family matters, employment cases, commercial disputes, personal injury cases, and major civil rights matters.

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