Terms, no matter how well constructed, are always subject to interpretation — be it a matter of definition or context. The potential for conflict over enforcement is, therefore, ever present.
Many employers and employees nowadays know the value of mediation, but most only consider proposing it after a conflict has arisen. Consider proposing a mediation clause in your engagement forms, such as:
- offer / acceptance letters,
- employee handbooks,
- non-disclosure agreements,
- non-competition agreements, and/or
- employment contracts
The following sample language may be helpful and, of course, can be modified to suit:
If a dispute arises out of or relates to this [contract, lease, term, clause…] or the breach thereof, and if the dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by mediation within 30 days of (name event, e.g., providing written notice of dispute) administered under (name rules, e.g., M.G.L. Chapter 233, section 23C) before resorting to arbitration, litigation or some other dispute resolution procedure. The process shall be confidential and based on terms acceptable to the mediator and/or mediation service provider.
Mediation is a process which involves each party to a dispute sitting down with an impartial person, the mediator, to attempt to reach a voluntary resolution. It involves no formal court procedures or rules of evidence. The mediator, also, does not have the power to impose a binding decision or force an agreement on the parties.
Not only does mediation provide efficiency, its inclusion as a dispute resolution option can be preventative; showing good faith and planting the seed of communication — the lack of which has been known to originate most conflicts.