What is mediation?
Mediation is a way to reach an agreement with your current or former employer about your employment dispute. Mediation is an informal process where a trained mediator helps move the conversation in a meeting between you and the employer to try to reach a resolution. Mediation is voluntary. This means that both you and the employer have to agree to try to resolve your dispute through mediation.
Will the mediator decide who wins my case?
No. The mediator does not decide who is right or wrong. The mediator’s job is to help you and the other side work out your differences. The mediator cannot require either party to agree to a settlement agreement.
What happens during mediation?
Every mediation is a little different, but you can generally expect the following things to happen:
- Introduction: The mediator welcomes the parties and discusses the ‘rules’ of the mediation in the same Zoom meeting room. One common rule for mediation is that both parties and the mediator agree to keep everything that was said during the mediation confidential. Another common rule is that both parties agree to be respectful.
- Opening Statements: Both you and the employer have time to give a short opening statement. The statement is usually not more than 5-10 minutes. The person who made the complaint, usually the employee, goes first. This is your opportunity to explain your side of the story and explain what you are looking for to resolve your case. After you finish, the employer will likely respond and explain their side of the story. The mediator will request that neither party interrupt the other party during the opening statement. There will be an opportunity after the opening statement to ask questions to clarify information.
- Negotiations: After opening statements, the parties start negotiations.
- As ACRD generally holds virtual mediations, the mediator will likely put you and the employer in different virtual meeting rooms. The mediator will then talk to you privately and will talk to the employer privately. The mediator will go back and forth between each room, and will share any settlement offers, counteroffers, and information that the party gives the mediator permission to share. The mediator will keep confidential information that you want to tell the mediator but not your employer. Be sure to tell the mediator what information you want to keep confidential and what information they may share with the other party.
- The mediator may suggest that you and your employer come back together to talk through the issues directly face-to-face. This might happen if you ask for something where more specific details are needed. For example, if you want your employer to do an ADA training, you might want to talk to the employer about what the training might include.
- Conclusion: By the end of the mediation, you may:
- Reach a resolution. If so, you will likely review and sign a No Fault Settlement Agreement that says what you agreed to along with standard terms. Sometimes, there is one agreement for the ACRD, and in other cases, the employer wants you to sign a private agreement between you and your employer;
- Decide that although you did not reach a resolution during the mediation, you and your employer want to keep talking so that you might be able to reach an agreement. If there is a good reason to do so, the EEOC/ACRD will generally allow you to keep talking to the employer to try to reach a resolution for a short time after; or
- Decide that an agreement is not possible at this time. If this happens, the ACRD will move on from the mediation stage and start the investigation of your complaint.
What should I ask for to resolve my case?
This is a difficult question because there are so many different factors to consider. Consider using the following process to think through your demand.
Step 1: Add up your monetary damages
Here are the general categories of damages and relief that you can ask for as part of the mediation.
- Back pay: Back pay, also known as lost wages, is the money that you would have already earned if you were not discriminated against, minus any income you did receive.
- Tip: You need to “mitigate” your damages by trying to find another job—be prepared to explain how you have done this.
- Tip: Bonuses, commissions, and benefits lost are also part of backpay.
- Front pay: Front pay is the money that you would have earned in the future if you were not discriminated against, minus any income you will receive.
- Tip: Front pay is generally hard to get, so you probably do not want to ask for a lot of your settlement demand as front pay.
- Compensatory damages: Compensatory damages are money that helps compensate you for any emotional distress or pain and suffering that you have experienced because of the discrimination. This category includes any other out-of-pocket expenses such as medical bills.
- Tip: The ADA limits the amount of compensatory and punitive damages you can get, even if you win your case before a jury. The limits are based on the size of your employer.
- Punitive damages: Punitive damages are intended to “punish” the employer.
- Tip: Generally speaking, most employers do not agree to punitive damages during mediation.
- Miscellaneous: There may be other “damages” that you have experienced that you will want to ask for.
Step 2: Consider if you want to request any non-monetary relief
Here are some common examples of non-monetary settlement requests:
- Reinstatement: If you were fired, you may ask for reinstatement, which means that you would like your job back.
- Positive/neutral reference letter: Consider asking for a positive (or at least a neutral) reference letter, which can be helpful as you try to find another job. A neutral letter of reference confirms that you worked at the company from your start date to your end date. A positive letter of reference has more details including what your employer liked about you while you worked there. Some employers have a policy about references and may only give neutral references, supplying the name of employee, dates of employment, and position. If your employer has such a policy, consider asking that they follow this policy and do not provide any other details about your termination.
- Reasonable accommodations: If you are still employed or you want to return to employment, you can ask that your employer provide you with reasonable accommodations.
- Modified policies: If you experienced discrimination because your employer had a bad or discriminatory workplace policy, you may want to ask that your employer change the policy.
- ADA/Disability training: Many employees ask for some form of ADA or disability awareness training as part of their settlement demand. Trainings can help educate employers and are intended to make the workplace fairer for others in the future.
- Miscellaneous: There are no hard rules about what you can or cannot ask for during mediation. If you have other creative ideas about how to reach a resolution, you should feel free to suggest them.
Step 3: Consider what you would be willing to resolve your case for
As you know, you are unlikely to get everything in a mediation that you would if you took the case all the way to trial and won. It is helpful to think through what you would be willing to settle for, though we do not recommend having a bottom line amount because you want to give yourself flexibility during the mediation.
Different people have different perspectives on mediation and settlement. There is no right or wrong answer, but it is helpful to think through your position.
Reasons others have decided not to accept a settlement offer:
- My employer did not give a reasonable settlement offer, so I am not willing to accept it.
- Getting my job back is the most important thing. Getting my job back is more important than money. Since my employer did not offer that during the mediation, I am not going to accept the offer.
- I have a ‘bottom line,’ or minimum amount that I am asking for and I am not willing to go below.
- I am committed to taking my case to court, even though I understand that it is a difficult process.
Reasons others have decided to accept a settlement offer:
- I don’t like to take risks, so I would prefer to have a resolution now than risk not knowing what might happen in the future with the case.
- I have bills to pay and need the money now. Even though the settlement is not perfect, I would like to accept to use the money now to support myself.
- Even though I think I have a strong case, this process is becoming very stressful and I think it would be better for me and my family if I accept an offer now so I do not need to continue into litigation.
- I know that I was discriminated against because of my disability. But I want to move forward and put this chapter of my life behind me.
What should I do before the mediation to prepare?
- Ask for accommodations if you need them. Many people with disabilities need accommodations for the mediation to be accessible for them.
- Prepare your opening statement.
- Gather relevant records.
- Ask ACRD for a copy of the template No Fault Settlement Agreement so that you can read the standard terms.
- Many employers insist that if they pay money in a settlement, they want the employee to agree not to reapply for work at the company in the future and for the employee to agree that they do not have a right to work at the company. No rehire terms usually apply forever. Just like any other term, these are subject to negotiation. Employees can ask for them to be shorter, narrower or otherwise limited if it is important to keep their options open.
What should I do on the day of the mediation?
- Be prepared to sign in for the mediation and use your link to the virtual meeting.
- Be prepared to be at the mediation for at least four hours. Most mediations are scheduled for four hours at ACRD, but if everyone is available, they can go longer. Bring your outline for your opening statement, your settlement demand, and your records. Keep track of each offer and counteroffer so you have a good if you are making progress.
- When your employer talks, be respectful and try to keep a neutral facial expression. Try not to make faces or react while the employer is talking. The employer is likely to say things that are difficult to hear or that you may not agree with. It is better not to take it personally and remember they are advocating for their position just like you are advocating for yourself.
What are other strategies for a successful mediation?
- Be accurate. Be relevant. Be convincing. Be polite.
- Emphasize but don’t exaggerate.
- Be careful with words like “discrimination” which will put the employer on the defensive.
- Consider what to share with the mediator alone and/or with the other side.
- Strive for resolution but be prepared that this situation might not be resolved at mediation.
