Making Mediation Work in Employment Law

            Recently as a volunteer for the Law Students Legal Advice Program, I met with an individual who claimed he’d been wrongfully dismissed. In describing the facts of the case, I was struck by the nature of the remedy sought. This individual was not overtly interested in financial remuneration; instead they were primarily interested in an acknowledgement that the dismissal was unjustified, an opportunity to discuss the dismissal and strangely enough a letter of reference. The case eventually was resolved without the need for a legal intervention, something that is frequently recognized as the most efficient outcome for both parties.

            In conflicts between employees and employers the impacts of litigation can be readily apparent. We have repeatedly talked about the exorbitant costs of litigation and the time required to reach a resolution. The expense is even higher when considered in a commercial context, in light of the disruption of normal day-to-day activities and the time that must be devoted time to help prepare a case.

            In addition, litigation risks detrimental affecting the culture of an organization. Word of mouth is often cited as critical for successful employee recruitment. The stigma of a company’s involvement in protracted legal battles with an employee or employees, can cause irreparable damage to its reputation. A company embroiled in fierce legal battles will not be a choice destination for top talent. In addition to damaging the company’s image in the eyes of potential employees, a legal dispute with an employee leads to an adversarial atmosphere. A dispute can divide an organization into distinct camps siding either with management or the employee, which reduces morale among existing workers. It fosters more of a normative relationship between employees and their employer, rather than a more effective emotional attachment or identification with the organization. 

            As a result more and more companies are instituting employment policies that include dispute resolution mechanisms, which may start with an internal complaint and investigation, peer review, non-binding mediation and then arbitration. Often the line between right and wrong is not clearly identifiable and resolving the issue combatively through litigation can lead to all or nothing solutions. When one side denies culpability, the other typically will respond with an unwillingness to enter into any type of settlement.

            Mediating employment disputes offers several benefits, for instance mediation covers a broader range of issues. Existing dispute resolution mechanisms simply aren’t equipped to address the full range of issues and conflicts that arise. Employment disputes are fundamentally conflicts in a relationship. Mediation allows for the necessary expression of the emotional aspects of the conflict and provides a framework for creative problem solving. Mediation will often conclude without any lingering animosity, as both parties will have contributed to the outcome. The parties are encouraged to consider creative remedies such as training, job modification, letters of reference, letters of apology, or new open channels of communication in resolving these complaints, especially when they involve currently employed co-workers.

            As always if you feel that you have an issue that could benefit from mediation contact the CORE clinic at UBC either by email at coreclinic@hotmail.com or give us a call at 604-827-5024. Have a great week!