Mediating Employment Disputes Checklist (Including Sexual Harassment Claims)

By: Laurie E. Leader, Chicago-Kent College of Law and Effective Employment Mediation, LLC

This checklist highlights the main points for attorneys to consider when pursuing the mediation of employment disputes, including sexual harassment claims. Parties may wish to pursue mediation to resolve conflicts rather than engage in costly litigation. Mediation—a non-binding, informal, and confidential negotiation—facilitates a mutually-acceptable settlement while allowing parties to retain control over the process and outcome.

Prepare for the Mediation

The following steps are recommended in determining whether to mediate and how to prepare for mediation. The benefits of mediation are addressed in the section below entitled “Pros of Employment Mediation.”

• ✓ Determine the appropriate parties for mediation. All principals involved in the dispute (both the employer’s representative and the employee) and their attorneys should participate in mediation. The employer will need to have a representative with settlement authority available and in attendance at the mediation conference. It is critical that the parties and their representatives appear in person and not by phone.
• ✓ When to mediate. Parties may derive greater benefits from mediation at the outset of the dispute, before they become entrenched in their positions; however, mediation is a viable tool to resolve disputes in litigation, especially with a change in circumstances (e.g., summary judgment, management change, or impending trial). Sexual harassment claims are particularly appropriate for mediation due to their emotional and confidential nature. In emotionally charged disputes, consider co-mediation as an option (i.e., where two mediators work together to resolve the conflict).
• ✓ Address fees with the other side. Parties should work out whether one party will cover the mediation costs or whether and how the parties will split the costs. Optimally, both parties will bear the cost of mediation. Mediators want all parties to be invested in the process.
• ✓ Select a mediator. In employment disputes, mediators should be impartial and educated in labor and employment laws and regulations. Several companies offer mediation services, including the American Arbitration Association, Judicial Arbitration & Mediation Services, and Effective Employment Mediation, LLC. It is important to know your mediator. Inquire as to his or her training, the number of mediations conducted, and—where appropriate—a willingness to co-mediate the dispute. Make sure the mediator discusses mediation training as a part of his or her experience, as opposed to seminars on substantive law. Mediation training focuses on the mediation process; it is not the same as attending a continuing legal education seminar on mediations. Also inquire as to the mediator’s memberships in national or state mediation organizations and his or her commitment to the process of mediation.
• Although most states have minimal requirements for designating oneself as a mediator, many states have no such requirements. Mediators who claim they are certified often satisfy only the minimal certification requirements of their local counties. Mediators frequently claim to be certified because they have a certificate attesting to completion of introductory mediation training. A certificate is not in any way an official credentialing.
• While knowledge of the underlying law is essential, it is not as important as the mediator’s conflict management skills. Mediators weak on mediation skills but strong on substantive law may turn out to be very directive and evaluative—in effect, deciding the case for the parties and thereby extinguishing one of the benefits of mediation: self-directed outcomes. Also, don’t assume that a retired judge who had a distinguished career on the bench is necessarily a good mediator. Judges are accustomed to telling people what the outcome is or should be. Mediators have no such authority and it is not their place to direct the outcome in a mediation.
• ✓ Schedule the mediation. When scheduling the mediation, always overestimate the time needed to complete mediation, as the process often takes longer than expected.

Draft the Mediation Statement

Consider the following issues when drafting a mediation statement or submission prior to mediation:

• ✓ When to submit a statement. The mediator may request a mediation statement (or other written materials) from each party prior to the mediation conference.
• ✓ Contents. Mediation statements generally contain material facts, liability issues, damages, a summary of any previous settlement negotiations, the particulars of any employment practices liability coverage, and the party’s mediation expectations. To avoid the parties becoming contentious or entrenched in positions, consider requesting that any mediation submissions be for the mediator’s eyes only and not shared with the opposition.
• ✓ Goal of the statement. The mediation statement should educate the mediator on the procedural posture of the matter and the strengths of the party’s case. It also helps the party to analyze the strengths and weaknesses of the case (along with potential liabilities and damages), so as to be better prepared for the mediation conference.
• ✓ Potential cons of mediation statements. Experienced mediators know that the actual issues or conflict are not necessarily reflected in mediation submissions. As a result, some experienced mediators prefer to take the case cold, because this tends to elicit a more nuanced statement of the actual matters in dispute. Mediation statements may result in a party becoming more entrenched in his or her position. The more a party identifies with the position, the more difficult it becomes to move the party off that position to a compromised resolution without losing face. Mediation statements also may reinforce unrealistic expectations on the part of the client and serve as reminders of an adversarial proceeding.

Best Practices for the Mediation Conference

Consider the following issues when participating in the mediation conference:

• ✓ Focus. Parties control the outcome of the mediation; mediators control the process. Good mediators tailor the process to the particular circumstances.
• ✓ Format. The parties’ preferences generally guide the flow of the mediation conference. Typically the conference begins with the mediator outlining the procedures and rules of the proceeding. Sometimes the parties (or their attorneys) will then present opening statements to the opposing parties and the mediator. When used, opening statements should not amount to a legal argument of the case. Parties should exude civility and open-mindedness and avoid falling into the adversarial mode (which could escalate the conflict and impede resolution).
• ✓ Caucuses. Caucuses are private meetings between the mediator and a party. In a caucus, the mediator often works to better understand the party’s position and to help move that party toward an amicable settlement. Poorly trained mediators often rely extensively on the caucus to dissipate anger or avoid highly-charged situations. But experienced mediators will tell you that joint sessions are where the real communication takes place and where movement off of positions occurs. If the mediator is just shuttling between rooms, the best opportunities may be lost. Mediators who rely almost exclusively on shuttle are usually engaging in a glorified settlement conference, rather than mediating. They also are engaging in positional negotiations rather than in integrative negotiations which, unfortunately, fail to address the parties’ real interests. In positional bargaining, one party starts with a high demand and the other party makes a low offer. The mediator is reduced to shuttling between rooms, cajoling the party with the low offer to come up, and pushing the party with the high demand to come down. Professional mediators do not consider this to be mediation. Mediators committed to the mediation process strive to engage the parties in integrative negotiations, a more sophisticated form of negotiation (expanding the pie, not arguing over how big a piece each one gets). Integrative negotiation results in increased party satisfaction and more creative and reasoned outcomes.
• ✓ Settlement. If mediation is successful, the parties will move toward resolution and may achieve a settlement of the dispute. If the parties do not reach a settlement at mediation, the dialogue which began at the mediation often results in a subsequent settlement. If no settlement is reached in a single session, the parties may resume the mediation at a later date or pursue other means of resolving their conflict (typically through arbitration or litigation).

Key Considerations in Sexual Harassment Mediations

Attorneys should consider the following issues when participating in mediations involving sexual harassment claims:

• ✓ Don’t only focus on the legal merits of the sexual harassment claims and defenses. Mediation allows employers to cost-effectively address (and stop) inappropriate workplace behavior, even if it fails to meet the legal definition of a sexually hostile work environment. The parties should not only address the technical merits of any claims or defenses asserted, but they should also focus on the mediation process and the challenged behavior and reactions to it.
• ✓ Consider noneconomic solutions. Mediation preserves the employment relationship in a sexual harassment case. It permits both the complainant and the alleged harasser—if the employer feels it would be productive to bring the alleged harasser to the mediation session—to be heard in a confidential and safe environment without public disparagement or judgment. It further allows for creative, noneconomic solutions that may be more important to the resolution of the alleged sexual harassment claims than monetary relief, including:
  • An apology
  • Transfer or discipline of the alleged harasser
  • Promotion of a complainant who claims that he or she was denied a promotion when he or she objected to his or her supervisor’s alleged sexual harassment
  • Meaningful changes to the employer’s sexual harassment policies and procedures
• ✓ Give the complainant a chance to tell his or her story. Because the complainant in a sexual harassment case often feels violated or abused, it is important that he or she have an opportunity to tell his or her story, either to the mediator privately in a caucus or to all mediation participants in an open session. The best approach for allowing the complainant to explain what happened depends on the circumstances of the particular case, but the importance of allowing the story to be told cannot be overstated.

Pros of Employment Mediation

Among the benefits of mediation are the following:

• ✓ Cost savings. Mediation may result in cost savings for the parties; quick resolutions can result in a reduced or even no monetary award and may avoid litigation costs and expensive fees. Also, mediation frees up management and other personnel to focus on their work, not on answering interrogatories, assembling documents, or attending depositions or hearings. Mediation, likewise, permits employees to move forward with their lives and careers.
• ✓ Faster resolution. Mediation often results in a quicker resolution, minimizing the time spent by the parties on the claim.
• ✓ Confidentiality. Information shared during mediation is confidential and generally inadmissible in any later proceeding, which reduces the likelihood of adverse repercussions (such as a tarnished reputation or media coverage) to both employers and employees. Confidentiality is of heightened concern in sexual harassment cases.
• ✓ Flexibility. Parties may agree to various types of remedies—beyond monetary damages—that litigation generally would not allow. Mediation, thus, permits creative solutions that a court cannot order or that a jury cannot award. If the mediator is falling back on exclusive use of caucus, don’t be afraid to request more joint meetings. You can (and should) object to evaluative, directive efforts by the mediator in favor of a more self-directed approach.
• ✓ Expectations-setting or reality-testing. Mediators can assist parties in exploring possible outcomes and the likelihood of attaining one or more outcomes. Mediators often help parties explore their BATNA (Best Alternative to a Negotiated Agreement), their WATNA (Worst Alternative to a Negotiated Agreement), and their MLATNA (Most Likely Alternative to a Negotiated Alternative). However, mediators should not profess to know how a judge or jury would decide the case; such statements impede the process. To facilitate the process, mediators should give attorneys an opportunity to confer with their clients from time to time. This may occur during a caucus with the other party, but also can be built into the process without shuttle.
• ✓ Positive client perceptions. Even if mediation does not result in a settlement, the client will understand (if so educated) that you attempted to reduce emotional and financial costs, maintain confidentiality, and preserve relationships. The latter two issues are often of paramount concern in sexual harassment cases.
• ✓ Preserving relationships. Because mediation is designed to achieve interest-based outcomes and manage conflict, a mediation may salvage and, in fact, strengthen ongoing employment relationships. ✓ Education. Mediation educates parties as to the potential risks and benefits of moving forward with litigation.
• ✓ Finality. Mediation offers the parties finality. Moving beyond the dispute and avoiding “being sucked into” the adversarial process has considerable value. 

Cons of Employment Mediation

There are not many negative aspects to mediation if the process is respected.

• ✓ Employee frustration. In litigation, employers generally benefit from having more money and resources to spend, which wears down employees with a lengthy process. Because of this, employers may perceive that mediation—which moves more quickly—is a detriment or undermines their strategic advantage, but this is more a function of perception than reality.
• ✓ Mediation expense. Unsuccessful mediation can drive up costs, especially if the parties must proceed to trial without a settlement, but when compared with litigation, mediation costs are minimal.
• ✓ Distraction. Mediation may distract attorneys and parties from other tasks needed to prepare for litigation, especially if one party is adamantly opposed to settlement. But, again, if one party is opposed to settlement, a good mediator may help the party realize and achieve the benefits of a confidential resolution of the controversy.

Laurie E. Leader is a practicing attorney, clinical law professor, author, and certified mediator. Laurie joined the faculty of Chicago-Kent College of Law in the winter of 1999. As a clinical professor, Laurie represents companies and management, executive, and professional employees in labor and employment matters and mediates employment disputes. In addition, as a certified mediator, Laurie mediates labor and employment cases, both pre- and post-litigation, including employment discrimination, wage-hour, wrongful termination, and restrictive covenant cases. She is principal of Effective Employment Mediation, LLC.

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