The Benefits Of Mediating Noncompliance Matters – Sooner Rather Than Later

Stakes over noncompliance are getting higher. Partly because there is more to keep abreast of, and partly because of increased enforcement.

Recent changes in workplace law reflect a robust effort afoot to find, crack down on and deter future noncompliance infractions. There is a spotlight on worker classification, wage payment, minimum wage accuracy (tip offset calculations), overtime, and workplace safety, in addition to medical leaves, parental/maternity leaves, FMLA availability and accounting, hiring practices, and disability qualification and/or accommodation, among other matters.

Upon first realization of a noncompliance issue, it is natural for some degree of the following to take place:

1.) Discovery
2.)  Panic
3.)  Address in person
4.)  Failure to resolve
   4.a.)  Relations sour and exacerbate the conflict
5.)  Litigate? Or … Mediate.

Mediating first may feel out of order, the thinking being “If things didn’t work out with a direct face to face, why should I expect someone to yield absent judicial involvement?” Mediation is, however, worth utilizing early on. It can work because it provides things that are missed in taking a subjective approach:

  • distance,
  • filtering, and
  • organized thinking and problem solving.

Mediation is low risk damage management; while litigation
out of the gate and its exacerbation of tension may, in fact, be overkill. Compliance issues are relatively easy to assess.  It’s the “how to resolve” aspect that mediation takes care of.

Many cases coming to me now correspond to a heightened awareness of such compliance concerns and – not surprisingly – the strain of potential extraordinary damages (e.g., trebling, attorneys fees, and interest). 

The conflicts in these cases reveal varying degrees of misunderstanding and miscommunication about the law and legal responsibilities. Fortunately, these are matters especially suited for mediation. Consider, therefore, the benefit of sooner addressing, clarifying and correcting compliance issues, versus:

  • the time and expense of bloated courtroom dockets,
  • the relatively modest amount of time it takes to assess such matters
  • the persistent, and sometimes worsening, complications of disputes, particularly with a current employer/employee,
  • the inherent expenses in ongoing conflict and the possibility of escalating costs/losses such as personal/business reputation damage, interruption in career or professional advancements, and drains on valuable time, to name a few, and
  • the potential for attrition (lost personnel/professional investments and stability), erosion of workplace morale and commitment (productivity).

Early mediation is a sound, pragmatic, and expedient option.  It can:

  • provide immediate relief, enabling parties to move on with their jobs and business quickly
  • help parties incur as little as possible of the damage that litigation otherwise inflicts  
  • let participants maximally and optimally leverage money available to resolve the dispute and enhance the likelihood of settlement.  

Keep in mind that mediation does not do away with the litigation option and the vindication/damages potentially available. Litigation, however, can complicate, delay and even reduce the chances for a more beneficial resolution – mediated or otherwise.

If you have any matters pending now or developing, talk to a mediator. Choose someone who is adept at resolving workplace conflict; someone with extensive experience in and exposure to a broad variety of personalities, conflicts, workplaces, industries and resolutions. This will pay dividends by saving time, earnings, jobs, workers, HR and management resources, and more.

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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