How Do You Decide Whether to Mediate Employment Disputes?

Whether you’re in-house counsel or the CEO, when an employment dispute arises, it can often through a wrench into everything you’re working on. When faced with an employment complaint, it’s often the hope that it will simply go away, or resolve with a little time. Our labor and employment lawyers know that this can sometimes happen. Other times though, the dispute may escalate, forcing key players to make decisions as to how to best resolve it.

Here are some tips on how to prioritize whether and how to address employment disputes.

To Mediate or Not to Mediate – Here are the Questions

When faced with an employment complaint, the first questions to ask are these:

  1. Is the complaint unique to the individual, or does it involve a policy that applies to others?
  2. Is it likely that the issue can remain within the company, or is a lawsuit or administrative action likely?
  3. Is the issue one of primary concern to the company?
  4. What risks are involved if the company decides to ignore the complaint?

Generally, the first steps in resolving employment disputes involve internal mechanisms that (ideally) have been set up in advance. If it is determined that an employment complaint needs to be addressed, these internal mechanisms come into play. Managers, human resource personnel, or ombudspersons will facilitate discussions to negotiate a solution. At times, in-house counsel may be recruited to investigate and propose solutions. For more sensitive issues, such as sexual harassment, outside counsel or special investigators may be employed.

Once an investigation is complete, the company representative can use the evidence gathered to attempt a resolution. If a resolution is not found in a timely manner, it may be time to suggest mediation. This way, the manner can be solved confidentially, without subjecting the company to public scrutiny when a lawsuit is filed.

Mediation Clauses in Employment Contracts

Of course, having a mediation clause in employment contracts makes it simple to initiate talks of resolution early on. Company-paid mediation can also encourage complainants to disclose issues and evidence sooner. This can help resolve conflicts earlier and help the company avoid the extra costs involved in litigating a lawsuit.

Mediating Employment Disputes

If a company does decide to enter into mediation to resolve the employment dispute, there are certain formalities that must be followed, but not as many as would be required in a lawsuit. Generally, the complainant will initiate a complaint with the mediation company or agreed-upon neutral mediator. Both parties generally have the opportunity to provide the mediator with their arguments.

The mediator will consider the written or oral arguments of both sides. He or she will also consider evidence submitted by both parties. In some cases, parties will meet face-to-face in the presence of the mediator to participate in discussions. Sometimes, the mediator will take each party aside and attempt to obtain information that will help him or her facilitate a resolution.

If the mediator is successful in bringing both parties to a proposed resolution, the company must ensure that the terms are brought to the appropriate individuals for consideration before a final agreement can be made.

If your company is facing an employment dispute, contact our South Carolina labor and employment lawyers at Willcox, Buyck & Williams, P.A.  Our South Carolina labor and employment attorneys help businesses navigate the ever-changing landscape of company law.