Why Not Include a Mediation Clause?

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.

About Maria Hanna Joseph

Maria Hanna Joseph is Principal of Joseph Mediation. Her 25 years of experience in employment law, include 16+ of work and mediating for the Massachusetts Commission Against Discrimination which through which she has gained valuable insight into the MCAD, its practices and decision making. This, as well as her experience in plaintiff and defense litigation, with private and public sector clients, international and local business concerns, and in issues from harassment and discrimination, to noncompetition agreements, business operation, transgender workplace matters, retaliation and many others, lend her valuable perspective for understanding and mediating an array of legal and personal issues. In terms of volume, Maria has served more than 2,000 cases. Maria's practice has been honed with study of mediation at Harvard Law School's Program of Instruction for Lawyers, negotiation at Harvard Law School's Program on Negotiation, and in the disciplines of Transformative Mediation and Family/Domestic Mediation, which are significant assets in managing the personal nature of employment disputes, and conflict in general. Attorneys and parties know Maria as candid, pragmatic and persevering in her commitment to help them achieve meaningful settlements while keeping sight of their most important interests. The insight and creativity afforded by her experience and training are realized in the resolutions that manifest. These qualities, along with her demeanor and the trust she engenders, have earned Maria a reputation for being able to manage highly tense and fraught situations and individuals, and settle a wide variety of disputes and tough cases.
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