Alternative Dispute Resolution: Best Practices for Advocates in Employment Mediation


Originally published in the New Hampshire Bar Association - Equal Justice Under Law on October 19, 2012.

Cases involving the termination of employment are high-stakes matters for everyone involved. The employer likely believes that she exercised logic and good judgment in reaching a very difficult decision. On the other hand, the employee has experienced the trauma of loss of livelihood and likely believes that both the decision and the decision-making process were flawed and unfair.

In addition, the employee is probably experiencing financial difficulties. The employer may believe that she is being unfairly attacked for a difficult decision that was made in good faith. Everyone has a lot to lose. The intense emotions inherent in employment cases serve to make such disputes well-suited for mediation. In addition, the potential for attorney fees shifting to the employer if the employee prevails in discrimination and whistleblower cases makes mediation worthwhile for both sides. All of this requires that the advocates be exceptionally well-prepared. This article identifies the best practices for advocates to ensure that the mediation is productive and reaches a mutually satisfactory result.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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