Can Mediation Be More Effective Than Litigating?
For Many Dispute Situations, Including Troubled Employment Relationships, Mediation Offers the Employer and the Employer An Opportunity to Resolve Issues Without the Publicly Visible, High Cost, and Lengthy, Litigation Route. Additionally, Mediation Avoids the Adversarial Nature Litigation Often Resulting In Less Stress and Ill Regard.
Obtaining Mediation Services May Help Resolve Conflict and Heal the Relationship Between An Employer and Employee
When mediating a dispute involving an employment relationship, the employer and the employee seek to collaboratively resolve a dispute with the assistance of a professionally trained mediator. The role of the mediator is to assist in a constructive dialogue in hope that a resolution to the dispute may result. Unlike an adjudicator within a litigative process, the mediator role requires the mediator to avoid decision making or rendering of a judgment. Instead, the mediator acts as a neutral third-party person whose role is to facilitate discussions between the employer and the employee, among other possible parties, to help the employer and the employee explore and create a solutions that is mutually agreeable to the employer and the employee. The mediation process also provides more privacy than the litigative process which occurs within an open courtroom where documents and transcripts of hearings become public record; and accordingly, the mediation process avoids the potential for lingering negative public discourse that may affect both the employer and the employee.
In What Employment Dispute Situations Is Mediation Helpful?
The mediation process is available and may be beneficial in many circumstances where a dispute, conflict, or even awkward tensions, exist. Examples of common concerns that may be mediated include, among other issues:
- The disagreement regarding workplace practices and safety protocols;
- The extent of accommodations required by employees with special needs;
- The differing calculation of bonuses or other forms of compensation;
- The managing of behaviour challenges or remedial discipline matters;
- The allegations of wrongful dismissal or constructive dismissal;
- The determining of, or managing of, performance expectations; and
- The addressing of toxic environments involving workplace harassment, bullying, discrimination, or other unpleasantries.
Mediation can be especially helpful in situations where the relationship between the employee and employer is expected to continue after the dispute is resolved. Mediation provides the employer and the employee with an opportunity to express respective positions including needs and goals for the purpose of gaining an understanding that enables the employer and the employee to work together, collaboratively, toward a mutually agreeable solution to the dispute and thereby help to preserve, maintain, and continue, a respectful working relationship.
Although mediation is a collaborative process, the employer and the employee may, and should, have independent legal counsel present to participate by helping articulate and elaborate upon the position and ensure that applicable legal rights and entitlements are protected. Furthermore, any agreement created during a mediation process must be reviewed by the legal representatives before being signed by the employer and employee.
Unlike litigation at the Human Rights Tribunal, another tribunal, or within the courts, mediation aims to avoid the adversarial nature of litigation and focuses on a collaborative approach to resolving disputes; and accordingly, mediation is about the search for, and negotiation of, a win-win solution that mutually benefits the employer and the employee rather than argues for a win-lose solution adjudicated by a tribunal or court.
Offering Mediation As a Dispute Resolution Process
For effective mediation, the process should be voluntary and although some employment contracts may state that an employee is required to participate in mediation, a forced mediation process is less likely to result in a successful resolution of the dispute.
For best results within the mediation process, an employer should offer mediation as a voluntary option, and do so by informing the employee that:
- The mediation process is a voluntary option and remains voluntary whereas participants may choose to withdraw from mediation at any time;
- The mediation process confidential and details discussed during the mediation will be kept private and confidential;
- The mediation process purpose is to encourage constructive communication for the benefit of resolving conflict with the ultimate goal of helping the employment relationship;
- The mediation process is independent of any litigation process or labour relations process; and yet, the mediation process may help to avoid or settle litigation or other process;
- The mediator may be available for an independent advance discussion for the purpose of explaining how the process works so to help reduce any reluctance or hestitation and to be enable the employee to make an informed decision on whether to participate;
- The mediator may be available for an initial meeting at a neutral place outside of the place of employment or may be available for contact via personal telephone or other means as necessary to provide a sense of privacy, confidentiality, and reassurance, to the employee.
What Are the Roles of the Employer and the Employee During the Mediation?
As the parties in dispute, both the employer and the employee are pivotal participants in the mediation process. Unlike in litigation, where the disputants are often involved merely as witnesses testifying to facts that will be thereafter be argued by legal representatives and decided upon by an adjudicator or judge, the primary participants and the decision-makers are the employer and the employee.
Similar to the litigative process, the employer and employee should come to mediation prepared to tell the story of what happened, being what the conflict is about, as well as openmindedly prepared to listen to the viewpoints and concerns of the other party. In this way, both the employer and the employee receive a forum to air concerns and to share ideas for solving the conflict through a negotiated agreement that is satisfying to the employer and the employee.
The role of the mediator is to listen to the employer and the employee and to act as a guide for the clarification of the issues and as a guide for the exploration of ideas that can help solve the conflict. The mediator also assists in the formation of a settlement agreement.
How Long Does the Mediation Last?
A mediation is scheduled for a minimum of three hours with additional time scheduled as may be deemed necessary. Generally, a three-hour mediation session provides the employer and the employee with sufficient time to express the respective views and concerns regarding the issues in conflict as well as to explore ideas that may bring a resolution to the conflict. A three-hour session also enables the parties to take breaks when necessary.
A mediation is conducted as a strictly confidential process with exception for a circumstance where a child is at risk of harm, where a person is in imminent danger, or where a judge orders disclosure of information that arose from the mediation process.
As in all mediation circumstances, as the parties to the mediation, the employer and the employee are required to agree to the strict confidentiality nature of the mediation so to enable the necessary candid discussions with the mediator. The candid details include openness about the conflict, sharing settlement positions, among other views and issues. All parties and participants, such as attending legal representatives, are required to respect the confidentiality of the mediation process and are required to refrain from disclosing details of the discussions that occurred during the mediation; and accordingly, all parties and participants are required to commit to, and sign, a confidentiality agreement prior to the start of the mediation session.
During the mediation session, it is possible, perhaps even likely, that the employer or the employee will prefer and decide to discuss concerns independently with the mediator. This independent discussion where the employer and the employee meet separately with the mediator is a process known as a caucus.
The mediator is required to keep discussions that are held independently within a caucus confidential without disclosure to the other party; and accordingly, the mediator will refrain from sharing those details unless specifically permitted and directed to do so by the party to whom the duty of confidence is owed.
What Happens When the Parties Find a Solution?
When the mediation session results in a solution to resolve the dispute, the mediator assists the parties in drafting a settlement agreement. The settlement agreement formulates a binding and enforceable contract; and accordingly, before agreeing and signing the settlement agreement, the terms must be viewed as satisfactory to all parties involved. Generally, the mediator will require the parties to obtain independent legal advice prior to signing the settlement agreement and the settlement agreement will include a condition stating that the parties did, or did have the opportunity to, receive independent legal advice.
Do Settlement Terms Need to Comply With Legal Requirements?
Employment law issues are governed by the Employment Standards Act, 2000, S.O. 2000, Chapter 41, the regulations to the Employment Standards Act, 2000, as well as the common law jurisprudence from past precedent decisions. In some circumstances, terms of negotiated settlement arising from the mediation process must be compliant with relevant law; and accordingly, the mediator will, as stated above, require the employer and the employee to obtain legal advice prior to finalizing, and signing, the settlement agreement. For information about employment law that may be applicable to an employment dispute, see the various page links as provided below.
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