Vivian Berger Mediator

Home « Mediation, Employment, Civil Rights « Virtues of Mediation

Naysayers Are Wrong

The National Law Journal
Monday, May 12, 2003

Since the last quarter of the 20th century, alternative forms of dispute resolution (collectively known as ADR) have come to play an increasing role in the handling of conflict in various settings. In particular, mediation, which is basically negotiation between disputing parties aided by a neutral third party, has grown immensely in popularity as an alternative to litigation for those enmeshed in actual or potential legal controversies. That is especially true with respect to claims of employment discrimination; such filings rose 2,000% in federal courts during the past two decades and also mounted steeply at the Equal Employment Opportunity Commission (EEOC). Nonetheless, opinions about the desirability of this development differ sharply. Myself a mediator, I believe the ayes have it — subject only to a few caveats.

With burgeoning dockets, which often lead to snail-paced progress in administrative and court proceedings, both the judiciary and the parties have good grounds to prefer the confidential, swifter, cheaper and less stressful process of mediation. Indeed, it is now mandated or offered in the workplace by many public and private employers, as well as by the EEOC and numerous courts. In contrast to arbitration of job-related disputes_a growing number of employers exact acceptance of an arbitration clause as a hiring condition_ mediation does not involve an extrajudicial determination of liability or relief. It facilitates (without imposing) settlement, thereby enhancing party autonomy.

Mediation's added virtues include its focus on problem-solving rather than on blame. It also permits participants to devise an agreement tailored to their needs and interests. This is likely to be regarded as fairer than a court judgment or agency decision, whose terms may please none of the litigants. By encouraging dialogue between the parties as well as the lawyers, it helps to preserve or repair relationships. While ordinary settlement negotiations can, in theory, provide these benefits, the presence of a skilled neutral improves bargaining substantially, helping the parties, for example, to assess the objective worth of their cases and abandon fixed positions for solutions that meet both sides' requirements.

Can justice be private?

Critics of ADR say that mediation disadvantages weaker parties (such as employees). They also complain that "privatized justice" is not real justice, as it subverts accountability to public norms — so crucial to uphold and vindicate in the civil rights arena.

Disparities of power in mediation are a concern. Yet even though a company defendant has greater resources than a worker plaintiff, counsel for the latter can even the balance.

Some federal courts have established programs that provide pro se litigants with volunteer lawyers solely for court-ordered mediation. The EEOC should do the same, for cases of lopsided representation pose a dilemma for mediators. If the neutral tries to redress the inequality by assisting the employee, she risks losing her impartial status. But if she fails to guide the complainant, he may not understand his options or may believe the process to be unfair.

Corporate ADR schemes vary in how well they level the playing field. The best programs subsidize the mediator's fees and administrative costs, permit the employee's lawyer to attend the mediation session, pay for the lawyer (at times, via legal assistance plans), use outside rather than in-house neutrals, and let the employee participate in the selection of the mediator.

Since mediation in the workplace maximizes the good of the process_for instance, saving time and money and increasing the likelihood that the employee will keep his job — it should be encouraged. Indeed, company-sponsored ADR is proliferating. But safeguards such as those mentioned remain vital to its integrity.

Finally, the public policy critique falls wide of the mark because it implicitly compares mediation with a hypothetical, idealized vision of adjudication. In the real world, the majority of disputes settle and, thus, with or without mediation, do not publicly vindicate norms embodied in the civil rights laws (or other statutes). Given the sheer volume of employment discrimination complaints, a significant number will ultimately yield written opinions or otherwise advance the salient principles.

For most employees, who fare much worse than employers in court, mediation provides at least some modicum of justice or satisfaction. To reject it in favor of litigation, on a blanket basis, threatens to subvert the aims of mediation's well-meaning critics.