How to Choose Your Mediator in Employment Mediation

The range of mediations and mediator styles is broad indeed. Some mediators keep the parties separated all day; others believe that the parties should never be separated, except in the most unusual case, such as a case involving abusive sexual harassment. Some mediators never talk to the parties until the date of the mediation; others prefer to hold pre-mediation conferences to discuss the key issues prior to the mediation session. Some mediators are facilitative, that is, they do not opine as to the merits of the case. Rather, they work the parties toward a consensus by focusing on the needs of the parties, not the issues in the case. Other mediators are evaluative; that is, they review the factual and legal issues in the case, and bring to bear their experience as to how the case may end if tried in court, persuading the parties to compromise to avoid the risk of losing at trial.

Not all cases demand the same style. Discuss with your clients what they hope to accomplish in the mediation and what type of mediation format will best facilitate the result. What does the client need from the process? Is the employee reluctant to see anyone from the company, or does he or she want to address the President of the company and tell him what went wrong? Does the client need to speak to the decision-maker about how the termination affected him? Does the employer need to share with the employee his or her feelings of betrayal? Can the employee handle such a confrontation?

In choosing your mediator, bear in mind that everyone involved brings to the table their background, past experiences, their biases and judgments. People naturally view issues differently, observing the same facts from a different perspective. A mediator of course must be objective, independent, and open to new or different situations. It is important that the mediator understand the perspectives of the employee, co-employees, supervisors, managers, and senior management. A mediator must understand the legal issues, the environmental issues, the psychological issues, and the workplace issues.