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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