Sunday, January 21, 2007

Avoiding Employment Litigation with Mediation Before Termination

I was hired to mediate the termination of a long-term employee from his place of employment. The employer had previously been sued by a former employee and wanted to avoid a repeat performance. But the employer was not sure how to work out an agreeable solution that was fair for both sides and accounted for some errors that had been made by both parties.

The employer found my website and discovered that I have represented both employers and employees in litigation and counseling and figured this would help both the employee and employer feel comfortable working with me as a mediator. After speaking with both sides, it was agreed that mediation was a good idea to get creative solutions without breaking the bank on attorneys' fees. My job in mediation was to understand what a "fair" result actually meant to both parties and see what could be done to achieve it.

"Fair" for the employer meant security in knowing it would not face another lawsuit or any other repercussions if this employee was unhappy and spoke negatively about the company. "Fair" also meant not paying out a massive severance pay the employer could not afford. But the employer recognized the great asset the employee had been for many years and wished to find ways to acknowledge that fact which would be meaningful to the employee and still feasible for the employer.

"Fair" for the employee meant not only a reasonable severance pay or other bonus pay, but also not having a record of being "fired" and also having a strong letter of reference from the employer. These last two items were very important to the employee who understood, through mediation, the reasons for the employer's decision and was not bitter at being let go, but wished to do it with dignity.

It turned out that being able to leave his long-term position on good terms with his employer, and being taken out to lunch with the other employees to celebrate his "retirement" from the company (and having his wife invited to lunch too) did more to ease any feelings of resentment he might have had than the employer could have realized.

Through open communication we were able to delve in and discover the real needs and interests of the parties and then work to figure out ways to meet those needs. This was a happy ending for everyone.

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