Deciding Whether to Mediate

Not all workplace disputes are amenable to mediation (although most are). This section will help you figure out whether mediation is right for your situation.

1. Factors Favoring Mediation

Consider mediation when some or all of the following are true:

• Time is of the essence.

• You have a dispute with a coworker. If you are having problems with a coworker, the law may not offer you much help. Although coworker disputes can be mightily unpleasant, they often don’t constitute legal violations (unless sexual harassment or an assault is involved). Even if you could make a legal claim against a coworker, there probably isn’t much to be gained by filing a lawsuit. Unless your coworker is independently wealthy, you aren’t likely to win a significant dam­ages award—and even if you do, you may not be able to collect.

Mediation, on the other hand, may offer you the best chance of figuring out how to work together more successfully—and how to avoid problems in the future.

• There is an ongoing employment relationship between the parties. Mediation can be especially helpful if your dispute involves a current employee. Unlike litigation, which encourages the parties to take extreme positions and go all out to win, mediation encourages collaboration and emphasizes how the parties will get along in the future. This makes it a perfect way to resolve disputes among people who will have to continue working together.

• You can mediate through a free or low-cost program. Many larger private companies have in-house dispute resolution programs. Some government agencies—including the Equal Employment Opportu­nity Commission (EEOC), which enforces federal antidiscrimination laws—have their own mediation programs as well. These programs offer free or low-cost mediation services for employment disputes. If a program like this is available to you, it makes sense to give it a try.

• Confidentiality is important. As noted above, confidentiality is often a significant concern in employment disputes. The company may have trade secrets, business practices, or plain old dirty laundry that it doesn’t want to air in public. Employees may not want their every workplace lapse discussed and debated in open court. Mediation offers everyone a way to keep these issues confidential.

2. Factors Opposing Mediation

Although mediation offers some significant benefits, it isn’t right in every situation. If any of the following are true, mediation might not be your best bet.

• You need immediate legal action. In some cases, an employer or employee might need an immediate court order to prevent serious harm. For example, if an employee has stolen your trade secrets and is in the process of giving them to competitors, you don't have time to mediate a compromise—you need action right away. Or, if a coworker is threaten­ing you with violence, you will want a court's immediate protection, not a negotiation session. These orders—called “injunctions” or “restraining orders”—are available only through the legal system.

• Violence has occurred or been threatened. If you have been a victim of physical violence—as might be the case in a sexual harassment case or a workplace bullying situation—you may not want to sit down at a negotiating table with your tormentor. Although some people can mediate successfully in these circumstances, others prefer the built- in protections the legal system offers.

• You want to set a precedent. If your dispute involves an important legal principle, you may be more interested in creating a legal precedent than in simply resolving the problem. Mediation may help you work out your immediate dispute, but it won't generate a legally binding court opinion.

EXAMPLE Mark is a construction worker in North Carolina. He believes that he was fired because he is gay, but North Carolina law doesn’t prohibit discrimination on the basis of sexual orientation. Mark contacts a lawyer at a national gay rights organization, who tells Mark that the organization would be interested in taking his case in order to try to make new law. If Mark mediates the case, he won’t have this opportunity—and others who are fired because of their sexual orientation won’t have the benefit of his efforts.

• You're an employee with a slam-dunk case. Employers are almost always defending against employment lawsuits, which means the only real variable for them is how much money they're going to have to spend. That's why mediation is generally the right call for employ­ers. Employees, on the other hand, often stand to win quite a bit of money. If you have a very strong case and you’re willing to throw the dice in court, a lawsuit may be your best bet.

• Your problem is just the tip of the iceberg. Workplace problems that are widespread and affect many employees are not always amenable to resolution through mediation. For example, if an employee claims that the company’s promotion procedures are discriminatory, the dispute could potentially involve many employees. Unless the company is willing to consider changing its policies or practices, a solution that resolves just one employee’s problem is not going to put the problem to rest—for the company or the workers.

EXAMPLE Johanna works for a grocery store chain. Although her job title is “Assistant Manager,” she spends most of her working hours doing basic tasks like restocking the shelves and taking inventory—as do the 30 other Assistant Managers who work for the chain.

Should Johanna mediate her claim through the company’s in-house dispute resolution program? If she does, there will be 30 “ghosts” at the negotiating table—the other Assistant Managers, whose legal rights are also at stake. If the company and Johanna simply agree that Johanna will start earning overtime and the company will pay her a sum of money to compensate for the overtime she should have earned in the past, that will solve Johanna’s problem. But it won’t address all of the other employees who are in the same position. Similarly, if the company agrees to change its policy, that change will affect everyone, even though they didn’t have an opportunity to give any input. In this case, it might make sense for Johanna—and any other interested Assistant Managers—to talk to a lawyer before proceeding.

B.