Mediation is a non-binding process where a neutral professional mediator works with the parties to facilitate settlement of the dispute. The mediator does not determine legal right or wrong, but instead identifies common ground and seeks compromise by the parties. Stated briefly, the mediation process begins when the parties agree to mediate, and select a mediator. The mediator will then take the lead in the process. There will be communication between the parties and the mediator to discuss the mediation process, schedule a mediation meeting, and possibly invite the parties to submit written mediation statements. At the mediation conference, the mediator will work with, and between, the parties to identify common interests, and to develop the elements of a resolution that is acceptable both parties. If agreement is reached, the mediator will have the parties sign a written settlement agreement. The settlement agreement usually contains statements that the complainant waives her legal rights in return for what she receives through the settlement. If agreement is not reached at the mediation conference, the mediator may continue to work with the parties to achieve a resolution.

Mediation may begin for various reasons. Sometimes employers and employees have written agreements that they will participate in mediation before filing a legal complaint. Either the employer or the employee may propose mediation after a complaint is filed. Administrative agencies, like the EEOC, have new mediation programs when they offer the parties the opportunity to mediate through the agency. In litigation, courts may have requirements that the parties participate in an alternative dispute resolution process like mediation before trial.

The most common practice is that the parties equally split the cost of the mediator, who may charge from about $150 to $1,500 an hour, plus expenses. The mediation process for discrimination complaints is often short, with the mediator spending four to eight hours preparing, and then meeting with the parties from four to 12 hours. Sometimes a defendant employer will agree to pay for the entire cost of a mediation. If the mediation occurs through a government agency, or a court, the parties may not be charged. The EEOC has a mediation program using staff or contract mediators paid by the agency. Courts often have mediators who volunteer to mediate cases without charge, up to a limited time.

The parties to the dispute may or may not be represented by attorneys during the mediation process. The mediation process is normally easy to understand. The legal considerations that may arise during mediation include how the legal strength of a case affects its settlement value, and terms of a settlement agreement that contains a waiver of legal rights. If an employment dispute is successfully mediated, that usually ends the case, and the parties are expected to waive their legal rights regarding the dispute.

Advantages of mediation are that it is a relatively brief and inexpensive process, that facilitates participation by the parties in creating the resolution of the dispute, and the process allows for consideration of non-legal factors related to the dispute. Disadvantages of mediation may be that significant compromise is expected from both sides, the legal merits of the dispute are not decided, and sometimes parties who don't intend to settle use mediation to learn information from the opposing party.

If you have questions about mediation, you can find additional information through the links on this website, and you can ask a mediator or attorney, or the government agency or court program that sponsors mediation.

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