Tips on Mediation
When you’re dealing with an agency, such as the EEOC, to even be offered mediation means that your case has been deemed to have merit and that your case warrants an investigation by the agency. So, you’ve gotten past the point where your employer can claim that your case is without merit. But, that won’t necessarily prevent them from claiming just that. Anyway, mediation is the first choice/desired action because it is less time consuming and avoids litigation.
A friend of mine recently went through mediation with a government agency. Those present at the mediation meeting included my friend, the government mediator, the Human Resources representative (representing her former employer), and the former employer’s attorney.
The reason I decided to share tips on mediation is because my friend felt strongly that the mediator was really pushing her to make decisions that weren’t necessarily in her best interest. For instance, when her former employer low-balled her with a financial settlement offer, the mediator made a big show out of telling her what a great offer was being made to her. Yet, the offer didn’t consider back pay or compensatory damages. My point isn’t to get into the specifics of her case, but to share some of our discussions about the mediation process. Here are some tips to keep in mind;
1) Remember that you aren’t required to reach an agreement at mediation. DON’T LET ANYONE PRESSURE YOU INTO AGREEING TO A RESOLUTION YOU TRULY DON’T ACCEPT OR THAT YOU THINK IS UNFAIR;
2) Don’t assume your employer’s representatives will tell the truth at the mediation meeting. INFORMATION SHARED AT MEDIATION IS DEEMED CONFIDENTIAL AND CAN’T BE USED AGAINST THE OPPOSING PARTY AT A LATER TIME. So, don’t be surprised if you hear new false allegations at a third-party mediation session. Your employer won’t be legally committed to these new fabricated allegations;
3) Remember that the mediator is not there to provide you with legal advice;
4) If possible, take a lawyer with you, since your employer may bring representation. You should also have a lawyer there to represent your best interests, as well as to provide clarification on the Federal statutes;
5) Don’t assume the mediator is fair and impartial—or even good at their job; (the same as Human Resources staff, who are often not fair and impartial and usually work to protect the employer!);
6) Don’t assume the mediator isn’t trying to quickly move cases off their desk and may be using their personal work-related stressors to influence your actions/judgment;
7) Don’t assume the mediator is tilted in favor of the “little guy,” rather than the employer;
8) If you are engaging in third-party mediation with an agency, such as the EEOC (rather than so-called workplace mediation), and you don’t like the agreement being offered, simply decline to resolve the issue through mediation. Declining the offer will result in a full government investigation of your employer; and
9) To hell with your employer! You should consider the impact the abuse has had on you—personally and professionally. That includes consideration of compensatory/punitive damages related to loss of pay (termination, wrongful denial of promotions and raises, salary cuts/demotions, etc.), loss of work/sustained unemployment, any health issues caused by the stresses at work, damage to your professional reputation within your field (future employment issues), etc.
IF ANYONE HAS GONE THROUGH THE MEDIATION PROCESS, PLEASE SHARE YOUR THOUGHTS. POST A COMMENT!
If you want to know more about the government perspective on mediation, the EEOC has a link to facts about government mediation at: http://www.eeoc.gov/mediate/facts.html and a Q&A on government mediation at: http://www.eeoc.gov/mediate/mediation_qa.html