Information for Company Representatives
As A Manager Attending an Employment Mediation in North Carolina, What Should I Know?
I. Type of employment cases
Mediation is available for a wide range of employment disputes. You may be participating in a mediation on behalf of your company with a current employee, with an employee who has been fired, or with an employee who has filed a claim with an administrative agency or the court. Regardless, the mediation will provide you with an opportunity to work through your dispute n an informal process.
II. Neutral third party’s role
A mediation may be conducted in many ways. Typically, regardless of the stage of your employment relationship or the type of claim, the mediator will be a neutral third party who will not be deciding the case, but will be assisting the parties in discussing their options. The parties can decide to voluntarily mediate or they may be ordered to mediation by a court. Whether or not the mediator is appointed by the court, or selected by the parties, the mediator will not be making a decision for the parties, or even telling the parties what the outcome will be; instead, the mediator’s role is to support the parties in their decision making process. If you would like to see the qualifications of your mediator, mediators in North Carolina, who are certified by the North Carolina Dispute Resolution Commission, have qualifications listed on the NC DRC website, www.nccourts.org/courts/crs/councils/drc .Many mediators have their own websites or may be listed with organizations such as the North Carolina Academy of Superior Court Mediators, www.ncmediators.org .
III. Who will be present at the mediation
The company should decide in consultation with its attorney who will be the best representatives for the company. Anyone who is a decision maker should be present at the mediation. Currently, the decision maker is required by rule in court ordered mediations to be present; and, in any event, a decision maker can make the most effective settlement recommendations. The employee may come alone or may bring a person for support or help in making a decision. If confidential information is being discussed, the company may want to exclude the support person from the sessions in which the company is disclosing that confidential information. Witnesses are not present at a mediation, because the focus of mediation is on settlement and not on proving a case.
IV. Mediation process
The mediation typically is begun with all of the parties meeting together in one room. The mediator will tell the participants about the process and then will describe the circumstances under which the mediator will meet alone with the parties and their counsel.
In most cases, the attorneys will make an opening statement addressing the mediator and the other side about the case. The types of openings vary from mediation to mediation, from claim to claim and from attorney to attorney. There is no standard mediation opening.
There are some cases where the opening session may be waived after discussion with the parties and the mediator.
The attorney representing the company will usually have guidance from the company about the stance that the company wants to take at the mediation. That stance most likely will affect the type of opening that the lawyer will make. Some attorneys argue their case as if they are presenting the case to a jury while others take a conciliatory approach and say very little. Remember that in making an opening statement, each attorney will be representing his or her client. Rather than proving the case to the neutral third party, which is not the purpose of mediation, the attorney will more than likely make an opening that he or she believes will advance the possibility of settling.
As a manager, you may speak during this opening, if you would like to. Your attorney may want you to say something. Although it is not my style to ask questions during the opening, some mediators will ask questions and you may want to consider what you would like to say. Do not forget that if you have had a relationship with the employee, whether positive or negative, that relationship may factor into the decision-making processes about settlement on both sides. Be sure to let your attorney know how you think that prior relationship will affect the negotiations.
In some cases the parties will provide basic information in advance of the mediation about your case to the mediator. In other cases, the mediator will know very little about the case. When referring to names or events, keep in mind that the mediator may be hearing the information for the first time and do not hesitate to explain facts more than once.
Following the opening, the mediator usually will meet alone with each side. The purpose of the separate meeting is to get each side’s perspective on resolution and to discuss any issues that the parties may not feel comfortable discussing while everyone is meeting together.
Often, the mediator will meet alone with the employee and the employee’s attorney first. Usually, the employee will have an initial proposal or offer as to how the case could be settled.
Remember that no one has to make any type of offer at a mediation in North Carolina.
You may consider whether the company wants to make the first offer at mediation, if the company is planning on making a proposal. Oftentimes, the employee will believe that the company is willing to pay much more money to resolve a case then the employer is actually willing to. By making the initial proposal, the company may send a signal that it wants to settle, but not in the range that the employee is expecting.
If the mediator asks to meet alone with your attorney or with both attorneys alone, do not be uncomfortable. The mediator is trying to help the parties with their problem and may think that some of the discussions can be more effective with fewer or different people participating.
Employment mediations are usually conducted over the course of several hours with many exchanges between the parties. Most mediators do not take breaks during the mediation, but will offer the parties options for lunches or dinner. Bring something to read or work to do during the down time.
V. Additional settlement considerations
Mediation gives the parties the opportunity to settle a case incorporating terms that are not available to the parties should they win a lawsuit. You may want to consider discussing items that may be of importance to the employee as well as the company. If the employee has left or is leaving the company, the type of reference the company will give the employee may be important to both parties. If there is a question about whether the employee resigned or was fired, the parties can agree upon the status of the employee’s leaving. Oftentimes, the employee may want the record to reflect that the employee resigned.
If your company gives out references or tells a prospective employer whether or not an employee is eligible for rehire, then the parties may want to agree upon what that prospective employer will be told. The parties can agree upon a neutral reference, so that the company is agreeing to giving out only the dates of employment and positions held.
Both parties may have an interest in confidentiality and nondisparagement, terms which may be included in the settlement agreement.
VI. Conclusion of the mediation
A mediation may be concluded in several ways. If the parties have reached an agreement, then the mediator, in North Carolina, is required to ensure that a written mediated settlement agreement is prepared. The agreement will generally be drafted in such a way that it will be enforceable and binding in court, in most cases. If the parties do not reach an agreement, the mediator can declare an impasse, which means that there has been no agreement at the mediation and the role of the mediator is ended. The parties may, however, continue their settlement discussions, even if the mediator declares an impasse. The mediator also may adjourn the mediation so that the parties can develop additional evidence or consult with others. The mediator will have the option to reconvene the mediation.
Some mediators will bring all of the parties and the attorneys back together in one room before concluding the mediation. My practice is not to do so in a formal way. If the parties want to speak to each other before they leave, then I make that option available.
VII. Questions about the process
Do not hesitate to ask your attorney or the mediator if you have questions about the process. A better understanding of the process can lead to a more successful mediation.
Comments are closed.