In many cases today, often times attorneys and parties will look to different forms of alternative dispute resolution (ADR) to resolve their issues before going to trial. One such form of dispute resolution is mediation and in many employment contracts, employees may be forced to undergo this process with their employer when a conflict arises between the two parties. However, it is always beneficial to understand how this process works and what it entails if you are forced to undergo it.
To begin with, mediation is defined as “an informal process in which a neutral third party assists the opposing parties to reach a voluntary, negotiated resolution” of a dispute between two parties.((Facts About Med., EEOC, https://www.eeoc.gov/eeoc/mediation/facts.cfm (last visited Jan. 4, 2018).)) As the Equal Employment Opportunity Commission (EEOC) explains, “[m]ediation gives the parties the opportunity to discuss the issues raised in the charge, clear up misunderstandings, determine the underlying interests or concerns, find areas of agreement and, ultimately, to incorporate those areas of agreements into solutions.”((Id.)) However, unlike other forms of ADR, such as arbitration, “[a] mediator does not impose a decision on the parties. Instead, the mediator helps the parties to agree on a mutually acceptable resolution.”((Id.))
Because of the relatively informal nature of mediation, there is generally no specified structure or procedure to mediate a case, however, the decision-making authority lies with the parties and thus they are in control of any solutions that may be agreed upon, while the mediator “assists the parties in identifying issues, fostering joint problem solving, and exploring settlement alternatives.”((Med. FAQs, Kentucky Court of Justice, https://courts.ky.gov/courtprograms/mediation/Pages/MediationFAQs.aspx (last visited Jan. 4, 2018).)) Despite the informal nature of the process though, in Kentucky, there are still model rules that help to govern the process.((Model Med. Rules, Kentucky Court of Justice, https://courts.ky.gov/courtprograms/mediation/Pages/modelmediation.aspx (last visited Jan. 4, 2018).)) Regardless, because of this flexibility and the level of control the parties have over the proceedings, mediation can take several sessions and days to conclude depending on the complexity of the case and the relationship between the parties. Because of this, while an alternative dispute resolution process is generally cheaper than going to court, this process can result in relatively high expenses, with private mediators generally charging somewhere between $125-300 per hour, and even more for specialized areas of the law.
Because of the flexible and more informal nature of mediation, it is sometimes difficult to understand when mediation should be used and what the results of mediation will mean for the parties. To begin with, alternative dispute resolution is generally a voluntary process, unless you are subject to mandatory arbitration, and “is common in small claims courts, housing courts, family courts, and some criminal court programs and neighborhood justice centers.”((What is Mediation?, FindLaw, http://adr.findlaw.com/mediation/what-is-mediation-.html (last visited Jan. 4, 2018).)) Further, “[i]t is particularly helpful in disputes that require creative, as well as legal solutions or in which there will be a continuing relationship between the parties.”((Mediation FAQs, supra note 4.)) This is because mediation is generally less confrontational than litigation and the privacy of the mediation sessions generally allows the parties to more easily create and agree on their own solutions.
Finally, after a solution has been agreed upon, “most mediation agreements are considered enforceable contracts. In some court-ordered mediations, the agreement becomes a court judgment.”((What is Mediation?, supra note 8)) However, if no agreement is reached, “the parties may decide to pursue their claims in other forums.”((Id.)) Ultimately, alternative dispute resolution can be a very beneficial process to undergo to reach an agreement with an opposing party given the facts of a case. If you are considering some form of ADR however, you should consult legal counsel to discuss your possible courses of action.