Who Needs to be There: Employment Mediation
{4 minutes to read} As Tolstoy once said, all mediations are different because they all involve elements of unhappiness that need to be addressed. He did not directly write about who needs to be present or why at an employment mediation, but I’ll now tie up this little series on who needs to be present at a mediation. I have previously addressed this issue in the context of construction, divorce, and personal injury.
Employment mediations generally involve an unhappy employer and an even more unhappy ex-employee. Or an employee who was demoted, or not promoted, or has been harassed, etc. Cases can arise from an alleged breach of contract or discrimination based on age, race, sex, etc. The employer believes the actions it took regarding the employee were proper. The employee thinks otherwise. Add to this the fact that there may be multiple employees, not just one, complaining about the employer’s actions.
So, who does need to be present at the mediation for these cases to be resolved? The subtle but revealing answer is: It depends.
The employee is almost always present. That leaves us with the employer. Assuming an employer of sufficient size and means, the employer’s attorney is always there. Smaller employers? The owner may or may not show up, with or without a lawyer, though usually with a lawyer. There are many possible variations, and a mediator needs to address the various permutations beforehand to ensure anyone who is needed actually appears.
Some employment cases, however, can involve multiple employees. If the claim is based on alleged systemic discrimination, for example, the relevant evidence can partly be data-driven. For example, how many female employees older than X were promoted, fired, or given raises? The mediation may initially be focused on interpreting data supplied by the employer, and this may best be presented by and discussed with an HR person who does not know the employee(s) but knows the relevant company data. Later on, it may be necessary to have others from the employer describe actions that were or were not taken and the basis for them. Individual employees may or may not be present when mediating these cases.
An employee claiming sexual harassment may not want to be in the same room – even a Zoom room – with the alleged harasser. This raises the question of whether an alleged harasser not appearing at the mediation is helpful or unhelpful. Perhaps more progress will be made if that person is not present. Does that person not being present make the employee alleging sexual harassment feel more comfortable? Or does it make them feel they are being further ignored and dealt with cavalierly? On the other hand, the accused wrongdoer may have much to say about what really did or did not happen, and the employer believes such information is important for the mediator and the other side to hear. Sometimes an alleged harasser no longer works for the employer, and the employer has no control over them.
All of this highlights the importance of pre-mediation discussions that address the issue of who will actually participate in the mediation. Parties can easily anticipate who will or will not attend and be surprised that the other side has a different outlook. The mediator must ensure everyone is on the same page, or if not, what the alternatives are.
What has your experience been in dealing with this issue?
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Gary Shaffer Shaffer MediationGary@ShafferMediation.com |