Posted September 19th by Dave Smullin
Mediation is confidential, deliberative, quick and private. Today, employers and their supervisors have an intense interest in avoiding media attention. Mediation focuses on facts and their significance at trial, not on allegations. A mediation date can be arranged in weeks versus a realistic trial date usually over a year later. Mediation participants are limited to the parties, their lawyers and the mediator rather than a courtroom full of staff, potential jurors and the general public.
The swift and seemingly indiscriminate termination of some accused of harassment is generating fear of invalid allegations in managers and their families. They are in jeopardy now in a way that victims usually have been. What matters is that parties to allegations deserve the opportunity to explore what happened, what should have happened and what needs to happen, quickly and in confidence. For example, it may be true as in a mediation that I conducted, that an adulterous relationship was originally consensual. However, when that relationship ended, the accused continued to force his attentions on his former lover in ways that were clearly unwelcome. Pre-complaint mediation provided a quick, confidential way of resolving this uncomfortable, embarrassing situation. For the above reasons, mediation can be a valuable process, both pre- and post-complaint.
Posted in Workplace Employment, Sexual Harassment, Pre-compaint Mediation, Confidentiality
Posted August 3 by Dave Smullin
I read an essay, recently, on the "Wisdom of Native Americans" as applied to mediation. The author discusses fundamentals like “listening” and “respect” as well as less recognized values such as “compassion.” That analysis reminded me of a recent mediation where compassion transformed deep differences into a satisfying settlement.
The case involved a retail driver plaintiff who advised her employer that she had visited the Labor Commissioner in pursuit of overtime and expense reimbursements, including for some expenses which had not yet been submitted. She was then fired in part for insisting on payment before completing her work assignments. Thereafter, she sued for the overtime, unreimbursed expenses and wrongful termination.
The parties were far apart prior to the mediation, in part because the employer could not understand how it could be liable for overtime or expenses for which no documentation had been provided. The first three hours of mediation involved little progress. However, by focusing on what the plaintiff’s work life was like as her working relationship deteriorated, I learned that she had some personal experiences which were horrific. Suddenly her behavior appeared more understandable. In caucuses with the employer, while maintaining confidentiality about the facts, I shifted the tone of how I referenced the plaintiff’s behavior. Negotiations then substantially improved, resulting in an agreement on all issues. It was another example of the expression “The parties do not care about what you (the mediator) know, until they know how much you care.” Compassion had provided a major breakthrough.
Posted in Workplace Employment