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Mediation is rapidly becoming a preferred method of dispute resolution. The combative nature of litigation has made the trial attorney a prolific prime-time television character. However, it is often in a client’s best interest to seek a more cooperative approach. Mediation has improved and sometimes shortened or streamlined the judicial process, and it promises to generate greater trust in attorneys as the facilitators of solutions rather than conflict. Mediation can often result in at least a narrowing of issues and clarify positions in litigation — a benefit to the litigants and the courts. Federal and state courts across the country have implemented programs either promoting or requiring mediation. The Alternative Dispute Resolution Act of 1998 mandates that all federal district courts provide litigants with access to ADR measures. Also, federal and state statutes — including the Americans with Disabilities Act — recommend ADR procedures to resolve claims arising under their provisions. Many factors militate in favor of the growth of mediation as a way to resolve disputes, particularly those arising in the context of employment litigation. Public opinion is decidedly unkind to lawyers. Some scholars blame this reaction against attorneys, in part, on the adversarial process itself, and insist that the role of the “zealous advocate” must be re-evaluated. Additionally, litigation is costly, time-consuming and often an emotional drain on its participants. Employment litigation in particular has grown enormously in the past 20 years. See Chvany, Barbara “Using Mediation Effectively,” Practicing Law Institute Litigation and Administrative Practice Course Handbook Series PLI Order No. H0-005O, March 2000, 745,747. Employment controversies are particularly appropriate for mediation. The parties to labor and employment disputes typically have ongoing relationships that have been eroded by miscommunication concerning issues like job standards and expectations, or an employee’s perception that he or she has been treated unfairly. Mediation offers the potential for creative solutions to these highly personalized dilemmas. During the process of mediation itself the employee is given an outlet to express concerns about the work environment. Management may also obtain new insights into employee matters affecting operational affairs that may serve as the impetus for much needed changes. These changes can be outlined in a settlement agreement that reflects the efforts and ideas of both parties, in contrast to a court-imposed resolution that may not reflect an intimate understanding of a business’s operational and interpersonal needs. Moreover, the length, cost and scope of protracted litigation may be more destructive of the parties’ relationship. Even if a former employee with bitter feelings is involved, a successful mediation can have a calming and healing effect that is unlikely after a jury verdict — win or lose. Although the value of a settlement cannot be overstated, the possibility for insights into workplace dynamics means that even a mediation process that does not result in a settlement agreement may prove very productive. AVOIDING NEGATIVITY In addition to the financial incentives and the opportunity to learn more about the dynamics of the work environment, mediation assists management in avoiding the negative impact on employee morale and business good will that may accompany litigation. Although many complaints arising from employment relationships are summarily dismissed, it makes good business sense to avoid protracted litigation of even frivolous complaints and, thus, limit a dispute’s impact on other employees or on an employer’s business reputation. Two common types of mediation are directive and transformative mediation. See Wetsch, Major Sherry R. “Alternative Dispute Resolution-An Introduction for Legal Assistance Attorneys,” Army Lawyer, June 2000. Mediators using the directive approach ask direct questions, offer ideas and make suggestions in an effort to resolve the underlying issues. In the transformative approach, the emphasis is on the parties, and not so much on a final settlement. The idea is that changing people necessarily changes their perspectives. Authors R.A.B. Bush and J.P. Fulger insist that a successful mediation should be measured as much by the personal growth of its participants as the presence of a settlement agreement. See Rendon, Josefina M. and Judy K. Dougherty. “Going Postal: A New Definition and Model For Employment ADR,” Houston Lawyer, January/February, 2000. Other scholars have noted that the directive approach can be problematic because of some mediators’ tendencies to pursue settlements without adequately considering the concerns of the parties. The transformative approach does not similarly jeopardize the possibility of settlement. It can reasonably be presumed that parties to a mediation who are “empowered and recognized” because of the democratic focus of the transformative approach tend to be receptive to settling their conflicts. Additionally, because the transformative approach offers an open forum, it is especially meaningful to employment conflicts that involve miscommunication in on-going workplace relationships. For example, the United States Postal Service, an employer of approximately 900,000 workers, recently adopted the transformative approach after studies found that this approach “created a positive ‘upstream effect’ that improved workplace relationships by providing a better opportunity to be heard and by strengthening the ability to handle workplace conflicts.” OVERCOMING RESISTANCE Parties should be aware of the different approaches to mediation discussed above. However, the most common concerns that face practitioners and the parties that they represent are (1) the opposing side’s resistance to mediation; (2) selecting a mediator; and (3) determining which cases are appropriate for mediation. In Using Mediation Effectively, Barbara Chvany offers several options available to counsel when the opposing party is resistant to mediation: attempt to discern and address the specific issues of concern; propose mediators who will likely be acceptable to the other side; present opposing counsel with written background information on potential mediators; ask opposing counsel for suggestions on the selection of mediators; and suggest that the other side contact the mediator that you have suggested, or ask the mediator to contact the opposing party. Ex parte communications are permitted in the mediation process to facilitate trust in the mediator’s role as a neutral third party. In New Jersey state courts, parties may jointly select a mediator. However, if a mediator has not been agreed upon by the time that a court has entered a mediation referral order, the referral order will designate a mediator from a court-approved roster. The parties then have 10 days within which they may stipulate in writing to the designation of a different mediator. Once a mediator is selected, the parties must share equally in the mediation costs and may opt out of the process after three hours of the mediator’s services. This initial three hours is provided to the parties at no cost, and it includes an organizational telephone conference, preparation by the mediator and the first mediation session. Under New Jersey’s Complementary Dispute Resolution program, Superior Court and Municipal Court judges may require parties to attend a mediation session at any time following the filing of a complaint. However, it is possible to anticipate those cases that are most likely to benefit from mediation. For example, in those instances where the facts and the law overwhelmingly favor the plaintiff, management would obviously do well to pursue mediation as an alternative to litigation. Additionally, mediation is recommended when it is possible for counsel to anticipate that in the event the opposing side prevails, there will likely be low compensatory damages but high attorneys’ fees and costs. When a case involves sensitive or embarrassing information, both parties may be eager to obtain a settlement or at least explore their options in a confidential and discreet forum. In this context, it is no surprise that sexual harassment cases are particularly amenable to mediation. Although not all of these disputes can be resolved, mediation offers an opportunity for understanding and compassionate dialogue. The lure of huge jury verdicts can be met by the practicality of mediation, especially where the neutral(s) are experienced in the field. In other words, mediation does not mean capitulation for any party. Where there are serious and significant claims, the parties should be able to structure a resolution commensurate with their respective case assessments. By candor and confidentiality a neutral may help the parties find resolution. There are many other employment cases, like those that implicate the disclosure of proprietary information or information that may damage a plaintiff’s career, in which the parties may be eager to avoid exposure. In these situations, mediation presents the advantage of measures like confidentiality agreements and the protection of Rule 408 of the Federal Rules of Evidence and its state law counterparts, which render inadmissible statements made in compromise negotiations. The New Jersey courts charge practitioners with the responsibility of familiarizing themselves and their clients with the mediation process. (For more information on mediation in New Jersey see New Jersey Court Rule 1:40.) Mediation cannot solve every dispute, whether it is job-related or settling international boundaries. However, it can help focus and narrow issues and at least give parties a much needed reality check as litigation progresses. In general, effective mediation can be a positive tool for resolving workplace disputes so that parties can retain dignity, begin meaningful dialogue and seek reasonable and creative solutions not necessarily amenable in a courtroom. By investing in the process, mediation can save time and resources if the parties are committed to the process. Roger B. Jacobs is senior partner of Jacobs and Associates in Newark, New Jersey. He is a member of the Supreme Court Complementary Dispute Resolution Committee and the author of Labor and Employment in New Jersey (2nd ed. Lexis Law Publ. 2000) Charise Hayman, a third-year law student at Rutgers University, assisted in the preparation of this article.

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