Alternative Dispute Resolution in the Workplace
by Bruce S. Feldacker
As you will note from reading the other articles in this Law Day Supplement, there are ample ways for an employer to get into legal difficulties in the employment law field. You may think that every employment law problem is destined for a long and expensive court battle, but that does not have to be the case. There is a better way—mediation—to resolve such disputes, either “in-house” without any litigation at all or at a much earlier stage in the litigation process.
Mediation is a confidential voluntary means to resolve a dispute. Some courts now require mediation as part of the litigation process, but even then neither party is compelled to reach agreement. Mediation seems to be especially effective in the employment law arena. For example, statistics compiled by the United States District Court for the Eastern District of Missouri indicate that the settlement rate for employment law cases is significantly higher than in other fields. This success is not surprising. After all, mediation is about opening lines of communication between parties to a dispute, and, in the employment context, the lines of communication frequently already exist even though they may be damaged. In fact, one of the primary aims of mediating a workplace dispute is to restore communication so that the employer and the employee may better understand each other’s position in a dispute. This understanding frequently leads to resolution.
Another reason for which mediation may be especially useful and successful in employment law disputes is that both the employer and the employee may have a common desire to resolve a matter; the employer to keep a valuable employee despite the current disagreement, and the employee to keep a job that he/she generally enjoys despite the difficulties. Mediation is especially effective in salvaging such situations because it can resolve a matter sooner before the parties’ positions harden and the financial (and emotional) commitment become too great. Even in a termination or a harassment situation, both sides may wish to resolve a matter quickly, confidentially, and inexpensively—all advantages that mediation offers over litigation.
Workplace violence is of growing concern to employers, and mediation may also play an important role in reducing this possibility. An employee may “vent” feelings of unfair treatment in a mediation session, guided by a skilled mediator, in a way that he/she would never do directly with the employer. An employee who believes that his /her complaints are being listened to and that an employer is making a good faith effort to resolve a situation is far less likely to become hostile. Also, although everything said and done in a mediation is absolutely confidential, mediation may help an employer identify employees who need outside counseling to deal with workplace pressure before a situation gets “out-of-hand.” And of course, supervisors are not always right. Mediation may help an employer identify supervisors who are not properly performing their responsibilities.
Many employers include Alternative Dispute Resolution (ADR) programs as part of their standard employment policy. An “in-house” ADR program may include both mediation and binding arbitration, or provide for only one of the two methods. Some employees—rightly or wrongly—may be reluctant to arbitrate disputes because they question the fairness of the process and prefer a jury trial. However, employees are far less likely to have reservations about a mediation program in which their participation is voluntary and the mediator simply assists the parties in reaching a mutual resolution. One advantage of an ADR program is that it can be tailored to the needs of a particular workplace. The ‘best” program is a matter on which employers should consult with their own counsel or someone experienced in the ADR field.
You don’t need to be a large employer to benefit from the mediation process. Some large companies have pre-selected mediators who rotate cases. But capable experienced mediators are available on a case-by-case basis. Both the Bar Association of Metropolitan St. Louis and the Missouri Bar Association maintain lists of certified mediators. You can also obtain the names of experienced mediators from such organizations as the Association for Conflict Resolution, the Association of Missouri Mediators, or the Association of Attorney Mediators. A number of competent mediation providers are listed under “mediation” in classified telephone directories.
Give mediation a chance the next time you have an employment related dispute. You won’t regret your decision!
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