Employment Discrimination, Harassment & Retaliation Mediation
Employment disputes involving allegations of discrimination, harassment, or retaliation can be difficult for everyone involved.
Employees may believe they have been treated unfairly, denied opportunities, subjected to inappropriate conduct, punished for raising concerns, or forced from a workplace they valued.
Employers may dispute what happened, believe employment decisions were made for legitimate reasons, be concerned about the effect of allegations on employees and the organization, or want to resolve a dispute without the cost, uncertainty, and disruption of continued litigation.
Mediation provides employees, employers, and their attorneys with an opportunity to address these disputes in a structured process and decide for themselves whether an acceptable resolution is possible.
Employment Disputes We Mediate
Mediation may be appropriate for disputes involving allegations of:
- Race, color, national origin, or ancestry discrimination
- Sex or gender discrimination
- Pregnancy discrimination
- Age discrimination
- Disability discrimination
- Religious discrimination
- Sexual harassment
- Other workplace harassment
- Failure to provide a reasonable accommodation
- Retaliation for reporting discrimination or harassment
- Retaliation for requesting an accommodation
- Retaliation for participating in an investigation or other protected activity
- Discriminatory discipline, demotion, compensation, or promotion decisions
- Discriminatory or retaliatory termination
- Hostile work environment
- Related employment claims
Cases may be mediated before a lawsuit is filed, while an administrative charge is pending, or during litigation.
More Than a Dispute About Money
Employment disputes often involve important financial issues, including lost compensation, benefits, attorneys’ fees, litigation expenses, and potential damages.
But money may be only part of the dispute. An employee may care about reputation, career prospects, acknowledgment of what happened, an employment reference, correction of personnel records, confidentiality, an apology, reinstatement, changes in workplace practices, or simply bringing a difficult experience to an end.
An employer may care about workplace morale, relationships among employees, management time, confidentiality, reputation, precedent for other employment matters, retention of valued personnel, disruption of operations, and the effect of continued litigation on employees who may become witnesses.
Understanding these interests can be important to making good settlement decisions.
Preparing for Mediation
Effective mediation begins before the mediation session.
Employees, employers, and their attorneys should have enough information to realistically evaluate the dispute. Depending on the case, this may include personnel records, compensation information, relevant policies, communications, performance evaluations, disciplinary records, investigation materials, information about comparable employees, and other significant documents.
Participants also should consider the strengths and weaknesses of their positions, factual disagreements, applicable legal issues, damages, litigation expenses, and realistic possible outcomes if the dispute continues.Preparation should go beyond predicting who might prevail. Participants should identify what matters most to them, what they hope to accomplish, what they want to avoid, which issues are priorities, and what terms they might consider as part of an acceptable resolution.
Considering the Consequences of Continued Litigation
Employment litigation can have consequences that are difficult to reduce to a dollar amount.
An employee might consider the time and stress of continued litigation, disclosure of personal or employment information, career consequences, uncertainty about the outcome, and the value of bringing the dispute to a close.
An employer might consider legal expenses, management and employee time, discovery obligations, workplace disruption, reputation, effects on morale, disclosure of information, and uncertainty about the outcome.
They are part of the information participants can consider when deciding whether a proposed agreement is preferable to continuing the dispute.
Looking Beyond a Counteroffer Process
Employment mediation can become focused almost exclusively on an exchange of monetary demands and offers. Sometimes that is appropriate. Sometimes a broader discussion can produce options that better address the participants’ interests. Each participant decides what matters, what to propose, and whether an agreement is acceptable.
Addressing Difficult Conversations
Discrimination, harassment, and retaliation allegations can produce strong reactions.
Employees may feel that important experiences have been denied, minimized, or misunderstood. Managers or other employees accused of misconduct may believe that their actions or intentions have been mischaracterized. Organizational representatives may have perspectives different from those of the individuals directly involved.
A mediation does not require participants to agree about the past.
The mediator can help participants communicate about the dispute, identify areas of agreement and disagreement, understand different perspectives, obtain or exchange information when appropriate, and focus on the decisions that need to be made.
Private confidential meetings (caucuses) are used when they would help participants discuss sensitive information, evaluate options, or consider proposals.
Early Mediation May Be Especially Valuable
Not every employment dispute needs to proceed through extensive discovery and litigation before meaningful settlement discussions begin.
In appropriate cases, mediation at an earlier stage may allow participants to exchange the information they need to evaluate the dispute while avoiding some of the financial expense, management time, workplace disruption, and personal stress that can accumulate during litigation.
Early mediation does not require participants to make decisions without adequate information. An important question is whether they have—or can obtain—the information reasonably necessary to make informed decisions.
When Litigation Is Already Underway
Mediation also can be useful after substantial litigation has occurred.
By that point, participants may have better information about the evidence, legal issues, damages, litigation expenses, and likely course of the case. The relevant question is not simply whether one side believes it can win. Participants can compare a proposed settlement with the realistic range of possible litigation outcomes and the tangible and intangible consequences of continuing the dispute.
Confidentiality and Respect for Participants
Employment disputes often involve sensitive personal, professional, and organizational information.
The mediator will explain the confidentiality rules applicable to the mediation and any limits on confidentiality. Participants and attorneys can then make informed decisions about what information to disclose, what information may be shared with another participant, and what confidentiality provisions they may want to include in a settlement agreement when permitted by law.
The process should provide employees, organizational representatives, attorneys, and other participants with a meaningful opportunity to participate and make their own decisions.
Discuss an Employment Mediation
We mediate employment disputes involving discrimination, harassment, retaliation, reasonable accommodation, termination, and related workplace claims.
Mediation may be considered before litigation, during an administrative proceeding, or after a lawsuit has been filed.
If you are an employee, employer, attorney, insurer, claims professional, or organizational representative dealing with an employment dispute, contact us to discuss whether mediation may be appropriate.
[Request an Employment Mediation Consultation]
This page provides general information about mediation. It does not provide legal advice, determine the merits of any employment claim or defense, or predict the outcome of any particular case. Participants should obtain independent legal advice when appropriate.