Mediation as Alternative Dispute Resolution

Alternative Dispute Resolution (ADR) refers to different ways in which disputes may be resolved outside of court.  A reference to ADR typically refers to either arbitration or mediation.  Arbitration can often feel a lot like court because it proceeds in a similar manner before one or more “arbitrators” although it occurs without a judge, jury or courtroom.  Mediation is much different and an extremely common form of ADR.  It is a process through which employers and employees can settle disputes without going to court or, if already in litigation, can resolve a lawsuit before a trial.  Mediation occurs when both sides of a dispute decide to use a neutral third party to help them try and reach a resolution that provides something of value to all parties. 

Compared to litigation, mediation is much faster and far less costly.  A lawsuit can cost thousands of dollars and take years to resolve, while mediators are paid by the hour and may help resolve the dispute within a day.  One of the most attractive features of mediation is that there is no binding decision by the mediator.  In fact, the mediator does not decide the dispute at all.  Instead, the parties control the outcome and there is no resolution unless all parties agree.  During mediation, employer and employee each have the opportunity to discuss the issues, clear up misunderstandings, and find solutions to the dispute.  Mediation gives the parties the freedom to create a solution of their own choosing and the process can be and often is completely confidential.  The Equal Employment Opportunity Commission has provided statistics showing that over 90% of parties that used its mediation services were satisfied with the process and would use it again.

Mediation is a process that is very well-suited to certain disputes, especially employment disputes.  In fact, if you file a charge with the EEOC, you and your employer will have the opportunity to participate in the EEOC’s mediation program. If both parties agree to it, the EEOC schedules a mediation session with a trained and experienced professional.  If the parties cannot come to an agreement, the EEOC will proceed with an investigation.

Although there are a number of different types of mediation, one common form begins with all parties and their respective legal counsel meeting together, usually in a conference room at the mediator’s office.  Each attorney gives opening statements and the parties themselves may be given the opportunity to share their views without interruption.  The mediator might then have some questions to clarify the facts or issues that need to be resolved.  Thereafter, the parties will be split into separate rooms.  The mediator then meets separately with each side, continuing back and forth conveying information or offers that might facilitate a compromise and final resolution of the dispute.  

For EEOC mediations, you are not required to hire an attorney, but doing so can be very helpful. Your attorney can help you find a good mediator, help craft an initial proposal to get the mediation process started, explain and help gather the required paperwork, and evaluate your settlement options based on how strong a case you would have in court.  Your attorney will likely want to meet with you ahead of time to prepare for the mediation and help you decide what is important for the session. After mediation, when you and your employer have reached an agreement, your attorney can also help to put it into writing. By creating a signed agreement that reflects the terms you and your employer agreed on, and making sure that the agreement can be enforced if your employer doesn’t follow through, a lawyer can help ensure that the matter is settled once and for all. 

Mediation can be an excellent alternative to starting a lawsuit. We regularly assist our clients in mediation and Mr. Beasley is himself a trained and certified mediator.  To further discuss your situation, you can call us toll free at 1-855-774-3675, send us an e-mail, or fill out a consultation request form and we will contact you as soon as possible.