Employment Archives - Gary P Shaffer

Who Needs to be There: Employment Mediation

Two businessmen talking in conference room

{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.

To the Zoomiverse and Beyond

William Shakespeare in period clothing sitting in school desk with laptop computer.

{4 minutes to read} I’ve written before about the Zoomiverse and mediation. So far, so good. No one has yet said: Boy, I can’t wait until we can all travel to and from a mediation and maybe have a client, or clients, fly-in only to find out that someone couldn’t make it at the last minute. Apparently, no one is overwhelmed by the benefit of sitting down at the table together, shaking hands, and exchanging angry glances with someone only a few feet away.

Moving from Factual Exploration to Resolution

Fun Fact Trivia - Zebras are actually black with white stripes not white with black stripes

{4 minutes to read} My last blog addressed the relationship between “fake news” and mediation. I posited that resolving a dispute through mediation typically does not result from the parties agreeing on the “truth” or the facts underlying the dispute. Assuming that’s the case, what are the implications?

Here’s one: In general, I find that divorce mediations take longer than most other kinds of mediations. That’s not because divorcing couples take longer to agree on or figure out the relevant facts than, say, commercial litigants. More often than not, divorcing couples can eventually agree on their financial circumstances.

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 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.

Employment Mediation — If Not Now, When?

{3:30 minutes to read} I recently had a conversation with two attorneys in an employment matter that came my way through a court annexed mediation program that automatically sends all employment cases to mediation.

I have written before about the benefits of “mandatory mediation,” which until somewhat recently was often thought of as an oxymoron. One axiom of mediation has been that the parties are in charge of the process, including the decision whether or not to mediate. However, it turns out this theory has some flaws. The most serious is that many litigants would love to try to resolve their cases early on, but don’t want to make the first move in suggesting mediation for fear it will be a sign of weakness.

Easier Said Than Done

{2:54 minutes to read} I recently came across an Employee Handbook for a large metropolitan hospital. The handbook is relatively short, only 24 pages. It gives all sorts of information about benefits, professional development, direct deposit of paychecks, equal opportunity, employee health services, etc. There is also a brief, two-paragraph section on Grievance Procedures, where it says:

The hospital strives to be consistent and fair in its labor relations and pursues the development of sound working relationships among supervisors and employees. Usually, issues resulting in a grievance are the result of a misunderstanding and can be resolved through improved communication between management and employees.

Mediation Timing Part 2 – Commercial, Corporate, Employment

{4:00 minutes to read} In my last blog about timing and mediation, I suggested that in divorce matters, there is a sweet spot of around 90-100 minutes for any single session. You can read that blog here: Part 1. This framework is largely irrelevant to other types of cases, such as:

Commercial;
Corporate;
Employment;
Personal injury.

In non-divorce matters, the parties and especially the attorneys expect to spend a significant amount of time during any one mediation session. There is more shuttle diplomacy, especially early on.

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