Mediation of Employment Matters

• What is mediation?
• What happens in mediation?
• What are the advantages of mediation?
• What are the disadvantages of mediation?
• My dispute involves discrimination; then what?
• What does mediation cost?
• How do I find a mediator?
• What if I need a lawyer?

What is mediation?
Mediation is a good way to resolve disputes related to employment.

Mediation is a way to resolve disputes. The people who have the disagreement decide whether to resolve it and how to resolve it. Mediation uses a third party, called a mediator, to help the people try to resolve the disagreement. The mediator helps them talk about the problem, understand why they are in disagreement, consider how they might resolve the dispute, and find solutions that help all in the disagreement. The mediator does not make decisions for the parties nor does the mediator give legal advice nor psychological counseling.

If you are a member of a union, you should first contact your union representative concerning the dispute. Your union representative can further advise you.

If not a member of the union, you might consider mediation as a way to resolve disputes with your employer.

What happens in mediation?
Usually, the parties meet with the mediator in an office, typically around a table in a conference room. Only the parties and their attorneys attend, but you do not need an attorney unless you want one. (In some cases, such as family cases, lawyers usually do not attend.) Witnesses and friends do not attend. There is no court reporter or tape recording.

The mediator begins by explaining what mediation is and asking if anyone has any questions. The mediator then calls on each person, one at a time, to talk about the concerns that bring them to mediation. The attorney or the party may speak. The mediator may ask some clarifying questions and summarize. Then the mediator may ask additional questions of everyone. Once the mediator believes the matter has been discussed in sufficient detail, the mediator will ask everyone to focus on ways to resolve the dispute. The parties, with the mediator's help, will think of ideas and discuss whether they are feasible and helpful. The mediator may keep everyone in joint session for these discussions or may separate them for private discussions.

If an agreement is reached, the mediator will recite the terms to everyone and ask if they agree. If they do, the mediator will usually draft an agreement at the mediation and ask everyone to sign it. There may be additional documents that the lawyers need to prepare after the mediation is completed.

The mediator may stop the mediation when in the opinion of the mediator, no further purpose will be served in mediation. Even where no agreement is reached, though, mediation can help to narrow the issues in dispute or outline possible resolutions to consider or help the parties plan for their next steps.

What are the advantages of mediation?
Privacy is one of the main advantages of mediation. What is said in mediation is generally not disclosed. The Uniform Mediation Act of Illinois makes mediation privileged with certain exceptions.

Another major advantage of mediation is control. Because all the parties to the disagreement must agree to any agreement reached in mediation, the parties retain control. No decision is forced on the parties. The parties are free to reject any resolutions suggested and to seek a trial or use other means available to them.

A third major advantage of mediation is the ability to design resolutions that fit the needs of the parties in disagreement. The more honest both sides are willing to be concerning what they need, the more creative the parties can be in designing a solution that meets their needs. A judge or jury may not have that creativity.

Mediation can help parties resolve disputes earlier. Resolving matters early saves time and money. Also mediation is less formal than court proceedings; many people find mediation less stressful.

What are the disadvantages of mediation?
Because mediation is voluntary, if one party refuses to mediate, there will be no mediation. Also even though the parties come to mediation, there is no certainty that they will reach an agreement. Thus, there can be some lost time and money pursuing mediation but not reaching agreement. Also one party may use mediation to find out the thinking of the other party, without intending to work out an agreement.

Someone considering mediation should weigh the pros and cons. An attorney can help in deciding whether to mediate and if so, when. Many people believe that the risks are minor because you can always leave mediation and pursue whatever rights you had prior to starting mediation.

My dispute involves discrimination; then what?
If your matter involves employment discrimination, you need to know that there are deadlines for filing complaints. You should not wait to mediate because you may miss the deadline. You should immediately see a lawyer for information or call EEOC or the Illinois Department of Human Rights or the Human Rights office for your state.

EEOC: www.eeoc.gov or call 1-800 669-4000 or 1-800 669-6820 (TTY)

Illinois Department of Human Rights: www.state.il.us/dhr or (312) 814-6200 or 312 263-1579 (TDD) or 217 785-5100 or 217 785-5125 (TDD).

If you file with the Illinois Department of Human Rights, this agency might encourage you to mediate and refer you to a mediator. Any of the mediators on the court-approved roster for the First Circuit or any mediator who belongs to DRI is available to mediate for you as well.

What does mediation cost?
Mediators charge fees for their time and these fees are usually divided equally among the parties unless some other arrangement is reached. The mediators have listed their fees on the court-certified roster. Some mediators charge a reduced fee, depending on parties' ability to pay.

How do I find a mediator?
You may use any of the mediators who are members of DRI or mediators approved by the court for mediation in the First Judicial Circuit (Alexander, Jackson, Johnson, Massac, Pope, Pulaski, Saline, Union, and Williamson counties.)

If you are not in the First Circuit or do not want to use a DRI mediator, you may find a mediator in these ways:

• For family mediator - Mediation Council of Illinois (MCI).
  
• For other mediators - try MCI or the telephone directory or ask your lawyer.
  
• For mediators associated with ADR services - see U.S. Arbitration and Mediation (U.S. A & M) or Pinnacle in St. Louis or any of several services in Chicago, including U.S. A & M, American Arbitration Association (AAA - they also offer mediation) JAMS, and others.
  
• Go to www.mediate.com for a referral.
  
• Go to Martindale-Hubble Dispute Resolution directory.

What if I need a lawyer?
How do I find a lawyer and if I cannot afford a lawyer, how can I prepare for mediation?

• Go to http://www.illinoislegalaid.org/ to find information about the law and mediation.
• If you believe you qualify for Legal Services Corp. Funded programs, call 877-342-7891.
• To locate a lawyer in Illinois, go to www.Illinoislawyerfinder.com, which is maintained by the Illinois State Bar Association or call (217) 525-5297.