Choosing a Mediator

Once you’ve decided to give mediation a try, you’ll have to find a mediator. Sometimes, this is an easy call—if your company offers an in­house dispute resolution program, you can mediate there, at little or no cost.

1. Mediation Programs

There are several types of employment mediation programs that might be available for your dispute.

a. In-House Mediation Programs

Some companies—particularly those with large numbers of employees— have set up in-house dispute resolution programs to resolve conflicts between employees and their coworkers or managers. Sometimes, these programs use trained staff members (usually a mix of employees and managers) as mediators. Some companies use outside mediators rather than employees.

When employment disputes arise, the parties are invited (or some­time required) to mediate. The company can establish whatever rules and procedures it wants for how the program will work—including how long mediations will last, when and where they will be held, who may attend, and what evidence (if any) may be presented.

These programs are usually free or low-cost for the participants. For employees, particularly those with interpersonal disputes—trouble working with a particular manager or communication problems with a coworker, for example—these programs can be very helpful. Mediating can help get things back on track quickly, and help employees learn to work together.

However, these programs can have some drawbacks as well. If the mediators are chosen from company staff, the participants may reason­ably question the mediator’s impartiality. An employee who has a serious dispute with the company—as opposed to a personal conflict with another employee—may find this type of program especially dissatisfying.

If the mediation program is part of a mandatory dispute resolution policy, that also raises some red flags for employees. Many companies that offer mediation require employees to go through a multistage dispute resolution process, often ending in arbitration. Some of these programs also require employees to give up the right to file a lawsuit. In other words, the employee must use the employer’s program—and only that program—to deal with workplace problems. Experts and judges disagree as to the legality and wisdom of these programs, and the law in this area is in flux. If you are an employee in this situation, you may want to talk to a lawyer to find out what your options are.

b. Agency Programs

Many state and federal agencies make mediation available for employ­ment disputes. Some agencies—such as the U.S. Postal Service—have programs that allow their own employees to mediate workplace prob­lems. These programs cover only public employees, however.

Some public agencies make mediation available to private employees who file a complaint with the agency. For example, the Equal Employ­ment Opportunity Commission (EEOC), the federal agency that takes complaints of employment discrimination and enforces antidiscrimina­tion laws, has a voluntary mediation program for employees who file charges of discrimination. If the EEOC believes that mediation may be helpful, and the employer and employee both agree, the EEOC will

provide free mediation services. Those who have used the EEOC pro­gram give it pretty high marks: one survey showed that more than 90% of participants would use the service again. Some state agencies also offer mediation for complainants.

HTo learn more about the EEOC's mediation program, visit the agency’s website at www.eeoc.gov.

c. Court-Sponsored Programs

As explained earlier, some courts require the parties to try mediation or some other form of dispute resolution before they can proceed with a lawsuit.

2. Choosing a Mediator

If you are using an in-house or agency mediation program, you may not have much say in choosing your mediator. However, if you have a strong concern about the person chosen (for example, the agency mediator is a lawyer who has sued your company before, or the in-house mediator is good friends with your opponent in the dispute), you should speak up. There should be some process for selecting a new mediator if there is a conflict of interest.

If you are not mediating through a program, you will have to find your own mediator. The best place to find a mediator for most employ­ment disputes is through a private dispute resolution company. If the other party has already agreed to mediate and you don’t anticipate significant scheduling or other administrative issues, a mediator in private practice might be a good bet. (For information on choosing between an independent mediator and a mediation company, see Chapter 3.)

a. Mediator Skills

In many employment disputes, the parties will want a mediator who understands employment law and small business issues. A mediator with an employment law background can help the parties assess the strengths and weaknesses of their positions and offer some possible solutions based on what courts have ordered in other cases. Small business experience can be especially valuable in disputes involving current employees or changes to company rules and practices. A mediator who has some knowledge of how businesses really operate can help the parties come up with solutions that will be workable in the real world.

b. Mediator Style

The facts and personalities involved in your dispute will dictate what type of mediator will be best equipped to help you resolve it.

In some situations, you might want to choose the mediator who seems best able to reach the parties, given their current emotional states and bargaining positions. For example, if you are suing your former employer, and the company president is a hard-nosed businessperson who has refused to negotiate with you, you might look for a mediator whose words will carry special weight with your opponent. A high- powered lawyer or businessperson or a retired judge might be your best bet in this type of case, particularly if the mediator is willing to evaluate the merits of the case. On the other hand, if you are a small business owner involved in a highly emotional dispute with a long-term em­ployee, a mediator who starts talking numbers during the opening statement might shut down the whole process. In this situation, you would be better off finding a mediator who will help both sides express their feelings and explore what’s really at stake for them in the dispute.

c. Fees

How much you pay in mediation fees will depend on how many parties are involved in the dispute, which mediator you select, where you mediate, and how long your mediation lasts. In generally, you can expect to pay anywhere from $1,500 to $5,000 in total fees for a full day of mediation.

Often, the fees are split between or among the parties. However, in some mediations between employers and employees, the employer will agree to shoulder a larger part of the fee burden, particularly if the employee doesn’t have much money. It’s quite common for the parties to agree on a different fee payment as part of the mediation settlement— for example, they might agree that the employer will pay all of the mediation fees, generally by reimbursing the employee for fees laid out up front.

C.