we resolve WORKPLACE disputes
When your company receives a charge of discrimination from the Equal Employment Opportunity Commission (EEOC), this means that a current, former or prospective employee has filed a claim alleging that your organization engaged in illegal discrimination under federal law. Upon receipt of a discrimination charge, the EEOC will frequently propose mediation.
But why wait to mediate until after an EEOC charge has been filed? Once a current, former or prospective employee has filed an EEOC charge, there’s a very good chance that employee has already retained an attorney. This means the potential for litigation, and the cost to resolve the dispute, will be far greater than if the dispute had been resolved before a charge was filed. Accordingly, if an employer sees value in mediation, it should not wait to mediate until after an EEOC charge has been filed, but instead should consider the benefits of preventative workplace mediation; that is, using an outside mediator to try and resolve discrimination complaints internally as soon as they come to management’s attention.
Of course, the question many companies may ask is, why bother hiring an outside mediator? Can’t HR mediate workplace disputes on their own? The problem is that, assuming a company is large enough to have an internal HR staff, the HR managers may not be trained in mediation. And even if they have undergone such training, they still work for management, and thus it is unlikely employees will trust them to remain impartial and confide in them. Further, HR managers may find it difficult to remain objective, especially if they personally know some or all of the parties involved. For example, they may take an employee’s attacks on a professional colleague personally, and devalue the employee’s perspective rather than validating it. Such knee jerk reactions are likely to exacerbate the dispute rather than defuse it.
Moreover, the principle of confirmation bias teaches that, to the extent a discrimination complaint resulted from weaknesses in HR policies and practices, HR managers may find it difficult to acknowledge that the procedures they implemented are flawed and need to be corrected. Instead, they are more likely to defend their work, and view the employee as the problem.
As a neutral, an outside mediator addresses these barriers to prompt resolution of workplace disputes:
A mediator has no allegiance to either the employee or the employer, and thus no conflicts of interest. This unique status eliminates any constraints on the mediator’s ability to speak in confidence, and build trust and rapport, with both sides.
A mediator does not bring any baggage to the table in terms of a vested interest in defending how the company has done things in the past (often referred to as an "endowment effect"). Further, if the mediation exposes flaws in the company’s HR policies, the principle of reactive devaluation teaches that HR managers are much more likely to be receptive to constructive feedback shared with them confidentially by a neutral mediator than criticisms coming from an employee who is a potential adversary.
The cost of mediation is a drop in the bucket compared to the legal fees that a business will incur if a workplace dispute escalates into litigation. A court fight that lasts several years can easily cost hundreds of thousand or even millions of dollars in legal fees and other expenses.
Plus, there is the severe business disruption caused by discovery, which obligates employers to (i) collect, process, review and produce vast amounts of electronic documents (such as emails and text messages) from multiple data sources (often including employees' and executives' personal devices), and (ii) arrange for multiple employees and executives available to take off time to prepare for, travel to, and testify at depositions. And if the case does not settle beforehand, add the cost, stress and time commitment of a trial.
In comparison to litigation, the costs and burdens of mediation are miniscule. Even then, to encourage mediation of workplace disputes, Merge Mediation Group shares the risk of mediation with parties so that half the mediator's fees are refunded if the mediation fails.
A company may also genuinely value the talents and skills of an employee who has complained, and want to maintain a positive relationship with him or her, and not want to lose the employee over an unfortunate incident that can be quickly and easily resolved. If so, mediation offers the best (and perhaps last) opportunity to prevent the relationship from becoming permanently ruined (which is the likely outcome once the employee hires an attorney).
Using mediation to prevent discrimination complaints from becoming adversarial also protects the morale of other employees. In particular, an employee who complains of discrimination may have allies within the company who are quietly rooting for them (and will take their side in any litigation). Indeed, there may be other employees who experienced the same form of discrimination who are watching and waiting to see how their colleague’s situation plays out. A long, drawn out battle will surely sour other employees on management.
In contrast, a company policy of making sincere efforts to promptly mediate discrimination complaints internally sends a message to all employees that the company genuinely values its relationships with them and wants to quickly and satisfactorily resolve any incidents that arise so all the relevant parties can resume working together cooperatively to further the best interests of the business.
The David vs. Goliath narrative that typically marks discrimination lawsuits, can lead to adverse publicity that harms a company's reputation and hinders its ability to recruit new talent. Customers may also learn about the lawsuit and decide they no longer wish to do business with the company.
In contrast, mediation offers an opportunity to resolve disputes quietly without any negative publicity.
To the extent some of the parties have high conflict personalities, mediators are trained to regulate their emotions when dealing with such individuals. They consciously avoid taking difficult behavior personally, and can redirect the mindset of high conflict individuals away from blaming towards problem solving.
Mediation does not preclude a company from undertaking its own thorough internal investigation of any complaint, which is a best practice any time an incident of discrimination comes to management’s attention. To the contrary, the factual record developed during an investigation can be shared confidentially with the mediator (without waiving any privileges) to help him or her better understand how the dispute arose and more effectively assess the options for resolution.
Incorporating Enforceable Mediation Clauses Into Employment Contracts
To realize the benefits of mediating workplace disputes, companies can incorporate clauses into their employment contracts and/or employee handbooks requiring parties to first mediate any employment-related disputes before commencing legal action or proceeding to arbitration; new employees must indicate their acceptance of such clauses by signing appropriate documentation before commencing employment. Management should review any such clauses with counsel to ensure they are enforceable. See e.g., Tammie S. Nau v. David Chung & Englewood Lab, Inc., 2019 WL 2573281 (N.J. Super. Ct. App. Div. June 24, 2019).