Preparing for the Mediation
Once you have chosen a mediator, it’s time to get ready for the mediation itself. The general tips and information in Chapter 5 will help you identify your goals, consider your settlement options, and prepare your opening statement.
This section covers preparation issues that are particularly important in employment disputes.a. Who Should Attend the Mediation
Everyone who played an important role in the dispute—or will play an important role in resolving it—should come to the mediation session.
For example, if an employee is threatening to sue a company because she believes a particular manager has discriminated against her, then the employee, the manager, and a company representative should all attend the mediation. Similarly, if two coworkers are trying to mediate their problems, it might be wise for their supervisor to attend the mediation as well—after all, the supervisor will probably have to be part of any resolution that changes the way the parties work together.
Anyone who must authorize or approve a settlement should also be at the mediation, or at least be immediately available by phone. Sometimes, this means that a high-ranking company official must either attend the mediation or arrange to be on call during the session. If the employer has employment practices liability insurance or some other type of policy that applies to the dispute, a claims representative from the insurance company (with full settlement authority) should also attend.
DO YOU NEED A LAWYER?
Many employment mediations take place without lawyers. For example, it's somewhat rare to find a lawyer in an in-house mediation session, and agency mediations are often lawyer-free. Particularly if you are mediating an interpersonal dispute, there's no need to rush out and find counsel.
However, there are times when it makes sense to at least consult with a lawyer before the mediation, or even to bring a lawyer along to the session.
If your dispute may be worth a lot of money—for example, you have suffered serious injury or a number of your employees have alleged wrongdoing—it makes sense to talk to a lawyer ahead of time. The same is true if important legal rights are at stake. For example, if you believe your employer has discriminated against you, or your employee has complained that one of your policies is illegal, you should get some legal advice.b. Evidence
At the mediation, you’ll want to have any documents or other evidence that can shed some light on the dispute. Chapter 5, Section C, explains evidence in detail, including suggestions on how to gather and present your evidence. Here are some types of evidence that may be especially helpful in an employment dispute:
• offer or hiring letter
• performance evaluations
• records of discipline, warnings, or suspension
• commendations and awards
• termination letter
• employee handbook or other written policies
• written communications, including memos, email messages, letters, and notes
• copies of relevant employment laws
• items posted on company bulletin boards
• work samples
• documents signed by the employee(s)
• customer complaints or comments, and
attendance records.
c. Legal Research
Whether or not you decide to consult a lawyer, it’s a good idea to find out something about your legal rights and obligations before you get to the mediation room. Knowing what a court might do with your dispute can help you refine your own goals for the mediation. Employees will want to know what their rights are, whether their employer has violated any laws, and what kinds of damages might be available in a lawsuit. Employers will want to know what their legal duties are, whether they have violated any employee rights, and what kinds of penalties they might face at trial.
Nolo publishes several books about employment law, all of which explain your rights and obligations in plain English.
Employees should check out Your Rights in the Workplace, by Barbara Kate Repa. For employers, The Employer’s Legal Handbook, by Fred Steingold, Everyday Employment Law, by Lisa Guerin and Amy DelPo, and Federal Employment Laws, by Amy DelPo and Lisa Guerin, can help get you started.There are also many fine websites on workplace issues. Nolo’s own website, at www.nolo.com, has a free legal encyclopedia with lots of articles on employment law, written for both employers and employees. Several government sites provide information for employees and em- ployers—these sites include www.eeoc.gov (for discrimination issues) and www.dol.gov (for wage and hour issues, including overtime, compensation, time off, and family leave).
Employees should check out www.workplacefairness.org, a site with plenty of fact sheets and resources on employment laws. Employees in California can use the legal information available on the website of the Employment Law Center, a project of the Legal Aid Society of San Francisco, at www.las-elc.org. Employers can find lots of helpful information at www.toolkit.cch.com and at www.findlaw.com (under the “Legal Professionals” heading, click “Legal Subjects,” then “Labor & Employment Law”).
D.