How to prepare for employment mediation? If you’re attending an employment mediation, you probably have a lawyer who is representing you. But maybe not. Maybe you are preparing for employment mediation through the U.S. Equal Employment Opportunity Commission (EEOC) or the California Civil Rights Department (CRD). If you are represented by an attorney, speak with your attorney to find out the best way to prepare for your employment mediation. However, you can still use this article as a guidepost in preparing. And, if you are not represented by an attorney, hopefully this article will help you be a little more prepared for your employment mediation so you can increase the odds of getting your matter resolved.
Understand the Mediation Process
My first tip in preparing for an employment mediation (or any type of mediation) is to familiarize yourself with the mediation process. It only makes sense for your first step to be to familiarize yourself with how employment mediation works. The first thing you need to know is that employment mediation is a voluntary process where a neutral third party (the mediator) helps facilitate negotiations between the employer and employee to reach a mutually agreeable solution. That is the key to mediation, you reach a mutually agreeable resolution. This is unlike a court trial where a jury decides which party wins and which party loses. In mediation, the mediator doesn’t make decisions. Instead, he/she helps guide the parties toward their own resolution. I like to say that with a mutually agreeable resolution, both sides can “win,” and nobody has to be the loser.
Gather and Organize Documents
So, a good place to start when first preparing for mediation is to collect all relevant documents related to the employment dispute. These documents will be different for each case, but generally may include:
Employment contracts and policies
Performance evaluations
Disciplinary notices
Emails and other correspondence
Payroll information
Medical records (if applicable)
I cannot tell you how many times a party has told me about an email, or other document that supports their claim. I almost always respond, “Can I see a copy of that?” Things move much more smoothly if that document is ready to present to me instead of having to search through files for an hour to find it. So, gathering and organizing documents is an important step (and, may I say, possibly one of the most important steps).
Prepare a Comprehensive Mediation Brief
Don’t let the word “brief” cause you any anxiety. Mediators and attorneys refer to them as briefs, but it’s really just a statement of your position. The best mediation briefs (or statements) are ones that are persuasive and succinctly summarize your position, including:
- A clear outline of your claims
- A recitation of the relevant facts and legal arguments
- A chronology of important events pertinent to your claims
- An analysis of your damages (both economic and non-economic)
- A list of any non-monetary considerations you would like
The non-monetary considerations can sometimes be seen as “icing on the cake” when it comes to resolving your claims. The majority of negotiations during the mediation will be concerning how much money an employer will pay the employee. Oftentimes non-monetary considerations (i.e., a neutral job reference, a letter of recommendation, etc.) can be “throw in” items to sweeten the deal.
Identify Your Goals and BATNA
In order for you to emotionally prepare for mediation, it’s often useful to determine your desired outcomes and what we refer to as your “Best Alternative to a Negotiated Agreement” (BATNA). Having done this prior to mediation will help you make informed decisions during the mediation. In this phase, you want to consider both monetary and non-monetary solutions, such as:
Compensation
Reinstatement
Changes to workplace policies
Letters of reference
You might have noticed that the idea of non-monetary considerations popped up again. It is because of how important those items can be, and how easily they could get lost in the shuffle on the day of mediation. So have the list with you so you can easily point to it.
Plan Your Opening Statement
Prepare a concise opening statement that outlines your position and sets a constructive tone for the mediation. Mediators use to have a “joint session” years ago where the parties would sit face to face and give an opening statement on their positions. These do not happen very often anymore, but if you are curious if your mediator will suggest or recommend one, you can reach out to him or her to inquire. Regardless of whether the mediator will have a joint session, you should still prepare one to give to the mediator. In preparing one, focus on facts rather than emotions and express a willingness to negotiate in good faith.
Conclusion
By following these preparation steps, you’ll be well-equipped to participate effectively in an employment mediation and increase your chances of reaching a satisfactory resolution. If you happen to have the pleasure of having me as your mediator, feel free to reach out for a pre-mediation discussion. I find that talking to the parties prior to mediation (while not done very often anymore) is a great way to break the ice in anticipation of mediation so that the nerves are gone, and we can roll up our sleeves and get to work!
Why Mediation?
Mediations can be intimidating, especially if you have never participated in one before. They can also be anxiety invoking and scary to someone who has never participated in one before. This guide will help you understand how mediation works, to set you up for success. By being prepared, we can even the power dynamic so that all parties start on the same footing.
Contact us today for our availability to schedule your mediation.
Hanrahan Mediation
2305 Historic Decatur Rd, Suite 100
San Diego, California 92106
(619) 910-1200