Amy Lieberman, Esquire and leading national expert on corporate mediation, details her practical advice on how to settle workplace wars efficiently and cost-effectively through the process of mediation in her new book, Mediation Success: Get It Out, Get It Over, Get Back to Business.
Typically, people go through the court process, which can take years through trials and appeals and end up costing hundreds of thousands of dollars, says Lieberman. With mediation, however, a conflict can usually be resolved in a day and the cost is generally a few thousand dollars and results in an outcome with which everyone involved is happy, she adds.
Lieberman notes that anything that's in litigation can be mediated. She says that people who aren't going to mediation are when they think they can get out on a legal motion or they need some injunctive release. Any other issue that you can go to court over you can do in mediation, including class action.
"There has to be an advantage to going through mediation and settling; some people call it a compromise, a give and take," and while one might be able to get more money if they sue, they're rolling the dice to see if they'll win and with mediation "there is certainty," Lieberman says.
Perfect for mediation, Lieberman says, is employment law because people spend the most time there and they're very emotionally connected to what goes on at work. There can be a lot of private matters that you don't want to discuss publically, especially sexual harassment claims. Quick resolution can give both parties the privacy they need but also allow "the employee to get on with their life and the employer to get on with their work."
According to Lieberman, about 90% of Fortune 500 companies use some form of mediation. If there's a policy in effect, that policy may say that before a claim is filed with the court or EEOC, it needs to be mediated and the employer will usually go outside the company to get a mediator. The employer will cover the costs and some employers will actually reimburse the employee anywhere from $2,000-$2,500 to get their own legal counsel. If there's a policy in place, you can mediate really early on and if not, the EEOC will offer mediation at no charge for most claims.
Mandatory arbitration has been upheld by the U.S. Supreme Court. As a matter of public policy, Lieberman says that the Supreme Court urges, promotes and supports alternative dispute resolution and for years, that was limited to the concept of arbitration. The Supreme Court agrees that employees can be required to arbitrate all of their employment claims and they do look to make sure the agreement isn't overly one-sided and that in order for it to be fair, that the employer bear the cost.
Mediation is especially effective in divorce cases and Lieberman says that this is definitely the way to go, especially when there are children involved. Mediation expedites the process and keeps it much more private.
Lieberman says that the field of mediation is maturing and getting more specialized so that you can select a mediator that focuses on the area in which you're involved. There is no requirement that a mediator has to be a lawyer, but if you're going to settle a legal dispute, most people won't consider anyone without a legal background.
Amy Lieberman serves as the Executive Director of Insight Mediation Group and Insight Employment Mediation LLC in Scottsdale, Arizona. More information about her book, Mediation Success, can be found here. Amy spoke with The Legal Broadcast Network, featuring on-demand, video content on legal matters.