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.

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Stay Proactive

It may feel like once a case is filed that the outcome is out of your hands; that the chance to take proactive, ameliorating action is out of reach. That isn’t necessarily so. Pursue mediation.

Mediating in the early stages poses advantages for parties on both sides, such as:

1. “In-house” manageability of a situation gets further away from the parties as the legal process moves along.  As the matter progresses, sentiments fester and heels dig in.  The investment in or need for a decision-maker’s perspective grows.  Voicing and addressing concerns sooner rather than later may more easily rectify an outstanding conflict, minimize its impact, shorten its life-span, and avoid the filing of a complaint.

2. The sooner a matter is addressed, the greater the chance to turn morale around. People can be prone to believe the worst. Negativity can escalate and erode relations and productivity. Asking to mediate, however, demonstrates problem-solving sensibility and approachability.  It shows interest in addressing, understanding and rectifying concerns (sometimes primarily a breakdown in communication), rather than disinterest toward discord and resolution. This can improve information-flow to those responsible for the health of the workplace and lead to mutual efforts toward a safe, productive work environment.

3. The younger the conflict is, the greater may be the (temporary) availability of some non-monetary options that can enhance the prospect of mediating and settling. Such options and their value can disappear as time goes on. Some examples – with the caveat that each is mentioned for general discussion purposes, only, and subject to legal consideration on a case by case basis – are:

  • Fuller communication that leads to better understanding of the root of the conflict, the reason for lodging/filing a complaint and the defenses raised thereto (i.e., assumptions that each party knew what the other knew), what the interests are, and what kind(s) of resolution may possible;
  •  Expressions of regret shared alongside the reinforcement/enhancement of communication and other corrective measures can minimize immediate and broader fallout;
  • Reinstatement or return to work which can avoid a wide range and degree of losses;
  • Departure with the provision of a job reference (possibly denoting a description of work responsibilities), and agreement on who shall provide such, can serve an immediate need as well as minimize some of the most costly damages of conflict;
  • Clarification of one another’s understandings or negotiation of the parameters of non-compete arrangements which may enhance circumstances for both parties; and
  • Consideration for the greater efficacy of an earlier agreement to a confidentiality provision (though parties must be especially careful of recently enacted legal limitations associated with the availability of such).

Keep in mind, too, the relative value of achieving an early settlement in light of other possibilities.  Unfavorable short-term outcomes involving a Motion to Dismiss or receiving a Lack of Probable Cause finding can significantly weaken any remaining settlement potential.  Similarly, a Probable Cause finding can add tens of thousands of dollars to the cost of litigation and an assessed value of the case.

In short, the aging of a case can increase polarization and diminish the prospects for resolution and/or settlement. Be and stay proactive. Suggest mediation from the beginning and keep it continuously on the table. At the very least, the benefits include setting a conciliatory tone from the outset and planting a seed for discussion down the line if parties don’t immediately agree to convene.

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Happy Holidays

This season brings to mind the many things we have to be grateful for. One for me is being part of a community of people who care about what they do and who they’re helping, and they do their best every day. That is what a profession is supposed to be about and I consider myself fortunate to do my part with you.

Thank you for all you give and the opportunities to work together.

Sending wishes for your best health, happiness & prosperity this season and throughout the coming year!

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Let Employees Know the Resolution Door Is Open

Perhaps not since the Anita Hill-Clarence Thomas headlines has the workplace been so charged with potential and actual reports of sexual misconduct.  Just before those events, in 1991, I’d taken my first law office job in a small labor and employment law firm.  So enormous was the media attention over the hearings, it set the path for my entire career.

With the facility of social media, the workplace is now facing a fresh, unprecedented wave of sexual harassment headlines, complaints and legal scrutiny.

Some of the most proactive advice to give employers and employees to help them address workplace misconduct is:

  • Make it well known to employees and co-workers that the resolution door is open and the opportunity to know their concerns is welcome.
  • Relate by sharing you both want the same thing – a workplace that is safe and does not interfere with the ability to work and succeed.
  • Provide or utilize a means of putting people in touch with someone who has authority to take the matter seriously and do something about it – be it in person or by way of an anonymous hotline.
  • Provide or make use of user-friendly contact options, such as identifying at least one female and one male to whom to report concerns.
  • Follow through and follow up.  This kind of communication and demonstrated commitment to accountability can make or break efforts to avoid, deescalate or resolve conflicts.  It may not be possible to share specific personnel action, but book-ending within a given time frame with general acknowledgements, at least, says the concerns raised are being taken seriously — to the reporter, as well as the alleged wrongdoer.
  • Consider involving a third-party employment law neutral in the process, such as a mediator, diversity/anti-discrimination trainer or investigator.  There are a variety of ways to approach workplace issues, and it’s never too late or too early to address them.

In other words, as Chicago Booth’s Linda E. Ginzel says, “leverage your strengths,” such as your respect for communication and reporting.

These messages and methods are probably already a part of your workplace or one you manage.  It may be as simple as engaging in or highlighting them to maximize the benefits of the workplace-level approach, and protect a job, human resources and other valuable investments.

On behalf of yourself, an employer or employee, please contact me anytime to discuss how a neutral can be of help.

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Happy Thanksgiving

Happily, Thanksgiving season is here. It’s a holiday about looking back over the year and giving thanks, and gathering for a meal that celebrates what we are fortunate to have.

It’s hard to think about Thanksgiving without the Thanksgiving table. As you might expect, being a mediator makes me particularly appreciative of tables. (If you’d like to read my musing on how integral they are, click here.)

As I look back on the year, I recall a lot marked by coming together at tables. There were good times, important times, purposes achieved and all kinds of things shared across them. I also remember many people I was joined by including some for the first time, and one for the last. So, backdrops they may be, let’s appreciate tables as a means for bringing about memorable times and many blessings.

Happy Thanksgiving! Enjoy celebrating all the bounties your year has provided, and all that has made them possible.

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