Law Blog

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Getting More Than What You Bargain For

Access to the courts is a constitutionally protected fundamental right guaranteed to all citizens. Still, exercising this fundamental right may not always be the best method for purposes of resolving legal issues, or maximizing results. Driven by the freedom and power to design resolutions, the use of mediation as an alternative to litigation is on the rise in employment law. The Equal Employment Opportunity Commission has instituted voluntary mediation programs for employment discrimination disputes.  Used in collective bargaining agreements, mediation has also grown to resolve other employment disputes including discrimination cases, breach of contract and other areas.  To understand this current trend, one must first be familiar with the rules, roles and effects of mediation.

The mediation process rests the decision-making authority in the hands of the parties involved. In place of court formalism, deadlines and rules to adhere to, parties maintain control of their disputes, which often go beyond legal issues. Mediation encourages parties to move past their limited legal causes of action and constructively address all aspects of their claims in an effort to lay the foundation for a mutually satisfying agreement otherwise unavailable by the courts. A primary motivation for the use of mediation is the privacy of the process, often accomplished with confidentiality and non-disclosure agreements. Parties will feel free to openly exchange emotions, information, and reasonable expectations. Parties are required to participate in good faith and any final agreement is enforceable by law. Another driving force for the use of mediation is its pocket-friendly price tag. New York State has mandated the use of mediation across the legal field including divorce, foreclosure and bankruptcy cases. In a labor relations and/or employment law context, promoting cooperation between the parties can help reset the tone of the dispute, mend relationships and cater to broader categories of disputes.

The role of the mediator involves an array of functions; all directed to help better facilitate party communication and interaction. The mediator will caucus the parties, recap and relay information neutrally, act as an agent of reality in evaluating proposals and make suggestions. The role of an attorney will strike the balance of advocate and counselor in order to maintain the confidence of the client and to push for the best possible resolution. The importance of an effective mediator and collaborative agency strategies prepared by the attorneys is imperative to the success of the mediation.

The mediation process encourages understanding the impasses and underling interests of the parties involved. Employment disputes are entangled with feelings of betrayal, mistrust and letdowns. Personal relationships may cloud professional boundaries and vice versa. Mediation gives the parties the chance to actually be heard, as well as the chance to be able to move on to the next chapter of their lives, with or without each other. The winner-loser dynamic of litigation is virtually eliminated. Even if the mediation fails, its therapeutic nature will help the parties come out of the process with a better understanding of what kind of resolution they are seeking, and a better understanding of the other party’s perspective.

For more detailed information regarding the use of mediation and employment law disputes visit The Law Office of Borrelli and Associates, P.L.L.C. If you would like to consult with our professionals or have questions concerning the mediation process in employment law, do not hesitate to contact us immediately.

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