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Patience – Is it a Virtue? Part 3 – Employment Cases

Gary Shaffer,, discusses mediation in a workplace setting. Employment cases can present difficult problems for the parties, their attorneys, and the mediator. The employee often feels wronged, just like a spouse in a divorce case. The employer may think the employee is improperly seeking money they are not entitled to and concerned that a settlement could generate more litigation from other employees. The employee may have worked for the employer for years with good evaluations; yet the employer may feel the employee has always been difficult to deal with. These can present seemingly intractable problems. 

Like divorce cases, employment matters often require several sessions before a resolution can be reached.  While there are often money issues – back pay, increased pay – it can also involve much more than that. The employee may or may not have been fired. If not, consideration may be given as to whether having the employee remain in the same job is viable. That may require a discussion with a supervisor who is not present at the mediation. Approval or input from a human relations department may be needed. Of course if the employee is still on the job, there can be tensions at work for both sides that need addressing.

  • So how does everyone remain patient?
  • Is that a reasonable expectation?
  • And if not, what can be done to increase the odds that a matter can be resolved through mediation?

For the parties and the lawyers, it is important to understand that mediation is often faster and better than the drawn out process of a lawsuit. While employment mediations typically start only after a lawsuit has been filed, once the mediation starts, the clock can begin to move much faster than it will in court. This provides significant opportunities for all sides.

Waiting is certainly hard. But consciously embracing patience at this point can provide significant benefits. In particular, the parties don’t just wait: they do. Like divorce mediations, important work in an employment dispute is often done between sessions. That’s when ideas can be floated and digested.

  • Can the employee work somewhere else? Can they stay in the same job if some adjustments are made – from either the employer or employee end?
  • Is the employee willing to take less money; is the employer willing to give more?
  • Can there be some new training?
  • Can a reference be provided?

Of course there are no guarantees. An employer may decide it will not take an employee back under any circumstances, and an employee may be hesitant to return to a company where they feel improperly treated. But more often than not, positions can change for all sorts of reasons – legal or practical realities, new understandings, a willingness to modify an evaluation, or modifications in the work environment – and allow for a satisfactory solution.

Gary ShafferGary Shaffer

Shaffer Mediation


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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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