Employment Mediation in the Twenty-First Century:
Challenges in a Changing Environment

University of Pennsylvania Journal of Labor and Employment Law
Spring 2003

Go to Section I , Section II, Section III, and Coda

n recent years, two major changes have been taking place in the job environment. These involve the nature of the workplace as well as the nature of workplace disputes over claimed violations of anti-discrimination laws. Together, these changes have had a profoundly negative impact on the ability of litigation [FN1] brought under Title VII of the Civil Rights Act of 1964, [FN2] and similar statutes, to address job-connected complaints.

First, globalization and other trends have undermined the traditional model of long-term, often lifetime, employment at one firm. Previously, an employee would typically work his way up the career ladder until he retired, gold watch in hand. Now, mutual loyalties have loosened; the new paradigm is free agency. Apart from employment tenure, moreover, both job definition and workplace structure have been undergoing key transformations. Second, claims of discriminatory failure-to-hire have largely given way to claims arising from discharge, non-promotion, and other on-the-job complaints. To a great extent, discrimination has "gone underground:" [FN3] in a growing number of cases, an objective person [FN4] would have trouble distinguishing between unlawful bias and garden-variety unfair treatment. Illegality has, therefore, become more difficult to prove.

The literature contains a fair amount of discussion of each of these phenomena--changes in the workplace and in workplace-connected disputes--and their implications for employment litigation. But scholars have devoted less attention to their interaction and combined influence on such litigation. Two notable exceptions, Professors Susan Sturm [FN5] and Katherine V.W. Stone, [FN6] have advanced my thinking by their writings. [FN7] And no piece of which I am aware has considered in depth the relationship between these new developments and mediation of employment complaints. [FN8]

This article aims to fill that gap. Drawing on my experience as a mediator, [FN9] as well as relevant scholarship, I begin in Section I by enlarging upon the workplace changes I have already mentioned. Then I proceed to deal with the adverse effect of these changes on the ability of employees to obtain meaningful redress of grievances in administrative or judicial proceedings.

Against this backdrop, Section II then focuses on my primary concern: employment mediation. Contending that this increasingly common alternative (or adjunct) to litigation is almost always to be preferred to court resolution of employee claims, I temper that assertion with two caveats. One is that many of mediation's considerable benefits are lost or reduced as time goes by. Thus, it should occur as soon as possible after the controversy arises: ideally at the workplace level, while the employee still has her job. The other is that employers should offer mediation for a broad range of employee complaints, not confine it to allegations of breaches of legally protected rights. Above all, it ought not be limited to charges of unlawful discrimination based on race, gender, ethnicity, age, or other forbidden grounds.

Finally, in Section III and IV, I treat best practices for such in-house mediation: how it can be structured and managed so as to maximize its potential to address--and, where needed, remedy--complaints by individual workers, while also improving the workplace generally.

Go to Section I, Section II, Section III, and Coda