What You Need to Know About Employment Mediation

Employment mediation is an effective way to solve problems
in the workplace and provide an early resolution of a conflict before it causes
major disruption to the business. To get the most from this process, it is
important to have clear expectations about the process. Here is what you need
to know about mediation.

Purpose of Mediation

Mediation is a semi-formal process that involves legal and
practical issues. The process is voluntary and is an alternative to litigating
a case, which often brings about negative repercussions, such as inflated legal
costs and a long, drawn-out court battle. A successful mediation allows the
parties to resolve their legal issue and continue their employment
relationship, if desired.

Attendants at
Mediation

Typically, the parties involved at mediation are the
employee, the employer and the mediator. The mediator is a third party neutral
who helps the parties communicate more effectively and hopefully resolve their
dispute outside of the courtroom. If another party is involved in the work
problem, such as a manager or coworker, this person may also be at mediation.
Additionally, the parties may be represented by legal counsel, so their lawyers
may be present.

Length of Mediation
Sessions

Mediation sessions vary in length, depending on the
complexity of the legal issue and the dynamics between the parties. Some
mediation sessions may take three or four hours while others may last a full
day. Still others cannot be resolved within a day and may span over multiple
days.

Confidentiality of Mediation

The mediation process is confidential, so what you say
during this process cannot later be used against you. Because of this
attribute, the parties often feel more comfortable talking openly and honestly.
Additionally, the parties may communicate with each other directly during
mediation, which often helps the employee to feel like he or she is on a level
playing field with the employer.

What Are the Avenues Available for Dispute Resolution in the Construction Industry?

The construction industry often involves high stakes with multiple parties, expensive properties and various relationships.  This can increase the likelihood of a dispute arising within this context.  While litigation has been a common way to resolve legal issues involved in construction disputes, this option does not always offer the best outcomes or protect the interests of the parties.  In the last few decades, a variety of options to resolve disputes have grown in popularity, especially in the construction industry.

These dispute resolution methods have helped resolve issues related to contract delays, breach of contract, quality concerns and lien issues.  Construction contracts can include one of the methods discussed below or the parties can voluntarily agree to participate in the method.  These various options are discussed below, along with the advantages and disadvantages of each option.

Mediation

Mediation is one of the most common ways to resolve disputes in the construction industry.  This collaborative method focuses on minimizing conflict and improving communication between the parties.  A neutral third-party mediator facilitates communication between the parties.  He or she is independently selected by the parties and often is an expert on the subject matter so that he or she can talk from a position of authority.  The mediator does not impose a decision on the parties.  Instead, he or she helps the parties communicate more effectively and get to the bottom of their dispute.

The mediator may meet with the parties privately and discuss the strengths and weaknesses of their case so that they have a more realistic idea of it.  The mediator finds points of compromise between the parties, such as continuing the contract or agreeing to offset additional work with a new amount of payment.  Ultimately, the mediator guides the parties to settle their claim outside the courtroom.

Mediation is an effective way to resolve these disputes because it allows the parties to work together toward mutual goals.  They are often able to retain their business relationship with each other.  It also provides a template on how to resolve issues that may arise in the future.  Because the parties are allowed to openly communicate with each other, they are more honest and have a better understanding of the other party’s position.

 

The mediation process is confidential, so nothing said during it can later be used against the parties if they do not reach an agreement.  Mediation is often much faster than litigation and may be resolved in a fraction of the time it would take to litigate the case.  It is also much more affordable than litigation and the costs can be split between the parties.  The parties can make creative agreements that might not be permitted in court.

Arbitration

Arbitration is a process in which the parties refer their dispute to a third party who makes a final decision on the case.  The arbitrator is often selected based on subject matter expertise.  The arbitrator applies legal principles to the case and analyzes evidence.  The parties can make agreements regarding the limitation of discovery and whether the decision will be binding or non-binding.

Arbitration is confidential.  It is typically faster than litigation.  It can also be flexible when compared to court proceedings.  However, the costs are sometimes similar to litigated disputes.  There are also limited rights to appeal a decision reached in arbitration.

Adjudication

Adjudication refers a case to a qualified adjudicator who makes a binding decision on the case.  The adjudicator is a neutral person who is not involved in the construction contract.  Adjudication is quick and puts an end to a case quickly so that the project can get back on track.  This option is usually less expensive than litigation.

Typically, the parties must exhaust other methods to resolve the dispute before they can use adjudication.  If the losing party does not pay any ordered damages, the winning party will still need to turn to the court for enforcement of the order.

Mini Trial

A mini trial is similar to adjudication in that a case is tried in an abbreviated form in front of a decision maker.  The decision makers are usually lawyers or experts in the construction field.  They evaluate the laws and the facts involved in the case to make a decision.  The decision is typically non-binding.

This method is effective in seeing how outside parties may evaluate the case.  It can also help the parties see the potential impact of a decision on the case, such as substantial damages.

Expert Determination

Another dispute resolution method for construction disputes is expert determination.  This option allows a selected expert to make a determination on the case.  This process is informal.  It is cost-effective and quicker than pursuing a formal way to resolve the dispute.  The expert renders a decision, which is typically binding on the parties.  This method is the least legal in nature since the expert relies on his or her background in the construction industry rather than on legal principles.  Additionally, an expert’s determination will not usually be enforced without arbitration or litigation.

Litigation

Litigation should be used as a last resort to resolve disputes in the construction industry due to the expense, its public nature and length of time that it takes to resolve a dispute.  That being said, litigation does offer some advantages to disputing parties.  Litigating a case may be the only way to secure the remedy that you want.  The court can impose judgments that a party would not otherwise agree to without the court’s enforcement, such as specific performance to complete the job.  Additionally, a court judgment results in a binding and enforceable decision.  However, these decisions can often be appealed, which may make the case last even longer.

These are a few options that can resolve disputes that arise within the construction context.  It is important for project managers, investors and contractors to understand their options and to be proactive about preventing and resolving disputes.  David John can explain your options to you and how he can help you resolve a construction dispute affecting your project.

David John
Arbitrator | Mediator
www.davidjohnmediation.com

The Anatomy of Civil Rights Mediation

When a person believes that his or her civil rights were violated due to discrimination or harassment on the basis of their race, sex or nationality, were denied housing in violation of Fair Housing laws or otherwise had their state or federal civil rights violated, they may turn to mediation to help resolve these issues. This process involves many different steps, including the following:

Mediator’s Opening

The mediator will explain his or her role as a neutral third party who is there to guide the parties toward an amicable resolution of their legal issues. He or she will then provide ground rules on the respectful communication exchange and outline the process of mediation.

Party Opening

Each party involved in the dispute will then have an opportunity to explain their point of view, tell their side of the story, points of agreement and issues that need to be resolved. They may also express their hopes and expectations for a positive outcome.

Private Discussions

The mediator may separate the parties in different rooms and then meet with them one-on-one. During these meetings, the mediator will evaluate the strength of the case, help the parties understand the possible risks of ongoing litigation or conflict and suggest possible options to resolve the dispute.

Joint Negotiation

During this stage in mediation, the parties may meet together with the mediator to try to identify possible solutions to their legal issues. They may agree on mutual resolutions, such as agreeing not to speak negatively about the other or reinstatement. They can also brainstorm other possible solutions, such as reassignment of a harassing coworker, a public apology, a reference to an employee to help him or her get a new job or the award of severance pay or financial compensation.

Agreement

The mediator will draw up a contract that outlines the agreements between the parties. Each party will then sign the contract and the mediation will end.

 

Understanding the Process of Social Security Disability Mediation

Understanding the Process of Social Security Disability Mediation

If a dispute arises in the context of Social Security Disability, the judge assigned to the case may order mediation or one of the parties may ask for it. Mediation is a confidential process in which the parties involved in a dispute try to resolve their differences through open communication with the assistance of a trained mediator.

Mediation is an opportunity for the claimant and Social Security representative to meet face to face. This can humanize the process and make the representative more aware of the claimant’s situation. Because the mediator is not a judge, he or she cannot impose a decision on the parties. Instead, the mediator’s role is as a facilitator. The mediator is an impartial person who helps the parties improve their communication. He or she encourages the parties to reach an amicable decision outside of court.

 

Mediation typically begins as a joint session. The mediator discusses ground rules and the confidentiality aspect of the proceeding. Each side then gives an opening statement about their view of the case. Then, the mediator may divide the parties into separate rooms. The mediator meets with each party individually, expresses his or her opinion on the strengths and weaknesses of their position and learns more about their side of the case. The mediator conveys offers and information back and forth between the parties. This is all conducted in order to help the parties reach an agreement of their case.

If the parties reach an agreement, this agreement is memorialized in writing and states the terms of the agreement. Important aspects of the agreement may include the finding of the disability onset date, the amount of back payments, the requirement for any additional medical evaluations and the payment of attorney’s fees from the award.