Mediating with Whistleblowers Who Have Suffered Retaliation


Winston Churchill once said, “Courage is what it takes to stand up and speak. Courage is also what it takes to sit down and listen.” Whistleblowers take it upon themselves to stand up and speak when they believe something is wrong. Unfortunately, they are rewarded all too frequently by aggressive retaliation from their superiors. Remember, however, that companies — especially large ones — are not monolithic. They are made up of individuals. The fact that one manager or even one department seems corrupt and willing to lash out against those who would expose them does not mean the entire company is beyond reason.

Mediation is often overlooked in whistleblower retaliation cases because of the presumption that a company that has already acted against an employee whistleblower can never really be trusted. However, when misconduct or retaliation was the work of a rogue manager or department, the company as a whole, while still legally liable, may not actually be complicit, want to see justice done and want to clear its name in the process. In fact, federal agencies such as the Occupational Safety and Health Administration (OSHA) enthusiastically encourage the use of mediation and other alternative dispute resolution in resolving whistleblower cases. Using mediation provides a number of benefits to whistleblower and employer alike:

  • Mediation is less expensive and less time-consuming than traditional litigation.
  • Mediation exposes the company to much less publicity than traditional litigation.
  • For both parties, mediation is more likely to mend fences and make it possible for the employee to stay with the company, whereas traditional litigation is more likely to bring about an irretrievable breakdown of the relationship.

Mediating whistleblower retaliation cases is still a delicate matter. Furthermore, it may not be appropriate in many circumstances.


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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