Category Archives: Workplace

Anatomy of Sexual Harassment Mediation

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Sexual HarassmentMany courts throughout the country favor mediation and other forms of alternative dispute resolution because they help to unclog the courts. Sexual harassment mediation involves several components including the following:

The Setting

Mediation may take place in the office of the mediator, a conference room at the workplace or another neutral location. Mediation may take several hours or may last over several days, depending on the complexity of the problem and the preferences of the parties.

Selection of a Mediator

The parties can select a mediator of their choosing. Many mediators are attorneys or retired judges. However, others are business people, social workers, teachers or counselors. The mediator’s expense is usually split between the parties, but sometimes the employer or an insurance company may agree to pay the entire fee. The parties may review a list of mediators in the area and the specialty areas on which the mediators focus, such as workplace issues or sexual harassment cases. The parties can review the biographies of the mediators. Additionally, they can review websites and client testimonials. Some mediators may offer references from previous clients.

Opening Session

The mediator discusses his or her role during an opening session as a third party neutral who will help the parties communicate about their interests and try to resolve the matter without further litigation. He or she explains what the parties can expect during the day. The mediator explains the confidential nature of mediation and that nothing said during this process can later be stated in court. The mediator may have the parties sign a confidentiality agreement.

Private Caucuses

The parties may break into private caucuses in which they separately speak to the mediator. The mediator can take information that the other party permitted to the other party in an attempt to communicate important information. The mediator can also point out the strengths and weaknesses of both sides so the parties have a better understanding of their positions.

Settlement Agreement

If mediation is successful, the mediator will prepare a settlement agreement that the parties sign.

Considerations Regarding the Mediation of Sexual Harassment Claims

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During this polarizing time, one of the most high-profile situations that draws media attention to a business is a sexual harassment claim.  While some such claims are based upon an insidious culture against a particular sex, many are often the result of a misunderstanding or bad response to an initial complaint.  Employers may wish to consider the use of mediation as an effective way of resolving such disputes and may draft a model mediation program to accomplish these goals.  Some considerations may include:

Objectivity

When litigation ensues, there is often a perceived image of the “bad guy.” However, mediation allows a third party who has no connection to the case to help the parties work through the dispute.  Key members of the staff may be present and may be able to be objective rather than immediately assuming the accused is horrible. 

Confidentiality

The mediator should discuss the confidential nature of these proceedings.  Victims may prefer the confidential aspect of this process so that they will not be traumatized by having to testify in court or go through a formal grievance process.  Anything that is discussed in mediation cannot later be used against one of the parties.

Ability to Contemplate

Mediation focuses on the parties working together to achieve mutual interests.  This often gives the parties a chance to really think about their behavior and how others may have perceived it or been affected by it.  This time to reflect may help establish the roots for ideas to resolve the dispute as well as avoid similar problems in the future.  For example, the parties may agree to create a new policy, form a coalition or provide more education in the workplace to help head off similar problems in the future.

Defenses to Sexual Harassment Claims

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If an employer allows an employee to be sexually harassed, the employer can face substantial economic liability. However, proving a claim of this nature is often difficult. If an employee pursues a case in court, the employer may raise many defenses.

One of the most common ways for an employer to defend a sexual harassment claim is to show that the plaintiff has not met his or her burden. Simple teasing and isolated events are often not actionable. In order for an employee to recover with a lawsuit, he or she must show by a preponderance of the evidence that the harassment was so frequent or severe that it creates a hostile work environment or that it resulted in an adverse employment action. Showing that the harassment meets this level is often difficult because the employee must generally demonstrate that the harassment altered his or her terms and conditions of employment. An employee may not have proof of the harassing contact and the case may become a he-said/she-said.

Another common defense is that the employee did not take advantage of the sexual harassment policy by giving management the opportunity to adequately remedy the problem. An accused harassing party may even claim that the conduct was welcome and not offensive.

Many employers offer mediation to help resolve issues involving sexual harassment claims. This approach allows a mediator to analyze the claim and point out any weaknesses. This conversation is often completed in private away from the other party. If both parties realize the weaknesses of their side and how an adverse decision in court can affect them, the parties may be more likely to reach a settlement. This allows the parties to resolve the claim without having to litigate the matter in court and hoping that the jury finds the testimony and evidence to weigh more heavily on their side.

EEOC Favors Workplace Discrimination Mediation and Other Conciliatory Methods to Resolve Disputes

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EEOC Favors Workplace Discrimination Mediation and Other Conciliatory Methods to Resolve Disputes

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Workplace discrimination—whether related to age, sex or race—is a common problem in American workplaces and one that should be quickly resolved to avoid loss of productivity.  According to recent reports released by the U.S. Equal Employment Opportunity Commission (EEOC), workplace discrimination mediation has proven to be one of the most reliable and cost-effective methods for dealing with this problem efficiently and effectively, allowing companies and departments to get back to business as usual in a competitive market and challenging economic climate.

In a press release published at the beginning of the year, the EEOC announced a reported 99,412 charges related to private sector workplace discrimination during the prior year.  Year-end data released for 2013 is expected to show similar numbers.  While workplace discrimination is shown to be on the decline, it is still a major concern that affects productivity and brand image for many businesses.  This decline is likely due to a greater awareness of the definition of workplace discrimination and how such practices can affect a business’s short-term and long-term goals.

In 2012, of the nearly 100,000 workplace discrimination cases reported, 37,836 were related to retaliation; 33,512 were related to race; and 30,356 were related to sex discrimination, including cases involving the alleged use of sexual harassment and discrimination related to pregnancy.  However, it is important to realize that regardless of the reason workplace discrimination happens, such activity can decrease employee morale and set a negative tone for one’s working environment.

According to the EEOC’s own reports, the commission is placing a continued importance on conciliatory approaches to resolving workplace conflict, especially conflict that stems from discrimination.  During 2012 alone, almost $36.2 million was secured for victims of unlawful workplace discrimination through alternative dispute resolution methods such as workplace discrimination mediation.  Such payouts serve to assist victims in moving beyond the damaging psychological effects workplace discrimination can elicit; they also provide a solid incentive for companies to educate their managers on what workplace discrimination is and how it can be avoided.

Partnership Mediation

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Mediation as a form of alternative dispute resolution is one of the best ways to resolve partnership disputes, especially if you plan to continue in a business relationship with that person (or group of people).  With partnership mediation, you and your business partner(s) will make your own decisions regarding the dispute with the help of a neutral, third-party mediator who is an expert in business and partnership laws related to your circumstances.

Partnership mediation is useful in resolving a variety of disputes that might arise between small business owners, shareholders, stakeholders, management teams or members of professional groups/organizations.  When you choose to open and operate a business with other people, regardless of how much trust you place on their ability and expertise, there will inevitably be issues that arise in which you might not agree fully with their way of handling things.  These disputes can arise from all areas and facets of the business enterprise and day-to-day operations, including accounting, management decisions, marketing or even dissolution of the business.

Partnership Mediation

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Partnership mediators are able to assist business partners and teams by helping them create a plan to resolve the dispute and keep them focused on working together to maximize that plan’s benefit.  Specifically for management teams, it is often the case that people are thrown together to create a “team” but might otherwise have vastly different ways of handling things.  This assortment of personalities can create problems when the team is attempting to make decisions in unison, and partnership mediator can be a valuable resource in this kind of eclectic mix.

Partnership mediators are also skilled in helping business partners draft a Charter for their business enterprise if they are at the onset of creating a business together.  Legal expertise in creating that Charter will ensure that the business has a strong foundation moving forward and can help business partners avoid future legal pitfalls that might occur due to their lack of knowledge in how to create such a Charter.

Business Partnerships Can Be Tricky To Dissolve

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partnershipBusiness relationships can be tricky at best.  At worst, dissolving a partnership can take years, money, tears and more anxiety than the average person can handle.  The idea that you can do something to keep it from getting out of control gets lost on many but the truth is there is a lot you can actually do to make it go smoother and save you money in the long run.

Get Your Ducks in a Row

It’s often something people don’t think about but spending time to get organized can really do a lot for dissolving a partnership and doing so smoothly.  Gather any paperwork you have, especially any legal paperwork that details how your partnership is set up.  Read through all your paperwork so you’re prepared for any questions your legal advisor has.  This can help you feel more confident about decisions that will be made and help you understand what it will take to go your separate ways.

Seek Legal Advice

Going to through the court system can be extremely expensive and time consuming.  The friendlier you and your partner(s) can remain the better chance you have of not spending more money than you have to.  You’ll also have a better chance of walking away with more.

Consider legal advice from a professional mediator.  If you decide to work with a mediator who has experience in business partnerships you can get all the benefits of the court system without all the draw backs.  A mediator can help you sort through the legal side of the paperwork and set up the documents needed for dissolution.  More importantly they can work between both sides so that both can get a fair decision and they will work to keep it from being more difficult than it needs to be.

What Can a Mediator Do For You

A mediator can negotiate through the paperwork, books and other aspects of the partnership to make sure that there isn’t anything being kept secret.  Their fees are much less than a lawyer you’d go to court with.  In addition, a great mediator can help you get it wrapped up in less time.

Workplace Disputes Handled Quickly and Privately with Mediation

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Workplace mediation provides tremendous benefits to both employers and employees who are involved in a workplace dispute.  Not only are they confidential—they are more inclined to resolve the issue than litigation is, allowing everyone to get back to work (together!) more quickly, with minimal distraction and time lost from productivity.

The quicker you handle a workplace dispute through mediation, the more likely it is that the outcome will be favorable to everyone involved.  Allowing situations to fester only increases the tension and conflict—both of which are lessened through the process of mediation with a trained mediator who is an expert in handling workplace disputes.

Below are some of the most common issues that can be successfully handled through workplace mediation.

  1. Sexual harassment complaints—often, the core problem with sexual harassment is a difference in opinion regarding what is offensive and what isn’t.  When two parties are allowed to openly discuss boundaries, and what is (and is not) appropriate for a professional work environment, the situation is generally resolved quickly and with minimal damage.
  2. Interpersonal differences between employees—let’s face it, everyone is different and there are many times when different personalities clash at the workplace.  Settling these disputes and personality clashes quickly through mediation as soon as they arise can help offset further, more complicated issues that might arise if the situation is allowed to continue without mediation.
  3. Deteriorating job performance—employees can get wrapped up in their personal lives and struggles to such a degree that it lowers their job performance.  The intense personal struggles they face might produce feelings of defensiveness and anger, making it difficult to resolve the situation peaceably.  Mediation helps both employer and employee understand the reasons and the results of poor job performance, ensuring that the employee gets the support he or she needs to make it through difficult personal situations without affecting the company’s level of productivity or professionalism.