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Employment Mediation: Special Considerations When the Employee is Staying on the Job

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Employment Mediation: Special Considerations When the Employee is Staying on the Job

Source: New York Law Journal
Date: July 17, 2017

Robin H. Gise, Esq.
By RoBin H. Gise, esq., JAMs Many employment mediations involve employees who have already separated from the com- pany or who seek to negotiate a severance package as part of a settlement. But mediation can also be used to resolve disputes with current employees, where the employee is interested in remaining employed and the employer wants to retain the employee. To be sure, mediation with current employees is more common where the employer maintains a dispute resolution program that provides for, or in some cases requires, media- tion. In the absence of such a program, employers may not be willing to bring in an outside mediator until the dispute has resulted in litigation or the threat of litigation, and more often than not, by that time, the employee has been terminated or has resigned. Accordingly, mediation with a current employee outside of an established dispute reso- lution program is far less com- mon. However, under the right circumstances, it can produce a good result for the employee and employer. Circumstances where mediation of a dispute involv- ing a current employee may be appropriate include: • An employee who has alleg- edly suffered sexual harassment or discrimination at the hands of someone at the company, but wants to continue to work for the employer if working condi- tions can be made acceptable; • An employee who was passed over for a promotion and alleges a discriminatory motive by the employer, but wants to continue his/her career with the employer; or • An employee who claims the employer has not accom- modated a disability, but wants to find a solution for continued employment. Mediating with a current employee provides a unique opportunity for the employer and the employee. It gives the employer an opportunity to maintain or reestablish a good working relationship with the employee. The employee gets assurance that her or his con- cerns and allegations have been heard and addressed, and the benefit of ongoing employment. SERVING THE BENCH AND BAR SINCE 1888 Monday, July 17, 2017 Employment Mediation: Special Considerations When the Employee is Staying on the Job www. NYL J.comHowever, in order for contin- ued employment to be success- ful, the resolution must address the alleged workplace harm. If harassment or discrimination was claimed, the resolution must include a plan for how the employee will interact with the alleged harasser/discrimina- tor or whether they should be separated. It may mean that the employee is transferred to a dif- ferent department or a different supervisor or employer trans- fers or removes the alleged harasser. In a failure to promote claim or failure to accommo- date claim, a resolution could include a future promotion or a plan for accommodation. Indeed, the harms cited by the employee may include issues that are not directly related to potential legal claims, but need to be addressed in order for the employment relationship to move forward. As such, it will be important for the employer to bring someone to the media- tion who is familiar with the employee’s work situation. To be sure, there are potential pitfalls of mediating disputes with current employees. The employee may be too angry or demoralized to continue to work successfully even if the parties reach a resolution for continued employment. More- over, the venting on both sides that often takes place in media- tion could have a poisonous impact on the employment rela- tionship going forward. Finally, if mediation fails, it could trig- ger litigation (obviously, this is true in any mediation). Even though there may not be lost wages, monetary com- pensation may be an element of the resolution. The settlement may include compensation for an emotional distress claim or a failure to promote claim. If there is cash consideration as part of the settlement, there are various options for how will it be paid—whether in the form of a bonus, vacation, or future sev- erance. In addition, separation may lurk in the background. Even if the employee does not intend to separate, a separa- tion option may be discussed in the negotiations as leverage for either side. As is true with any mediation, the experience and quality of the advocates and the mediator will be critical. However , mediat- ing a dispute involving a current employee provides an oppor- tunity for the employee and employer to negotiate a settle- ment that allows the employee to continue a productive career with the employer and allows the employer to retain a valuable employee. Mediat- ing ongoing relationships is difficult, but under the right cir - cumstances, and with creativity and flexibility, it can produce a lasting and satisfying result. Robin H. Gise, Esq. is an expe- rienced mediator and arbitrator with JAMS based in New Y ork. She specializes in business/commer- cial, employment, insurance and construction/real estate disputes. She has extensive experience with employment disputes including discrimination claims, executive compensation and FLSA/wage and hour claims. You may reach her at rgise@jamsadr.com. Reprinted with permission from the July 17, 2017 edition of the NEW YORK LA W JOURNAL © 2017 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 or reprints@alm.com. # 070-07-17-38