The majority of us are or have been employees at some organization. We may have agreed to lengthy contracts, rules, and regulations that detail what we can and can’t do at work, benefits we receive for our contribution to the company’s business and so on. And, we all just sign those contracts, don’t we? According to leading HR researchers, you’d be among a microscopic minority if you even fully read the contract papers, let alone actually reflecting on it and considering it’s future implications. Given this statistic, it’s not difficult to understand why there are dozens of employment related disputes files in US courts every day.
So where’s the problem, you ask. That’s what the courts are for. To resolve disputes that result from ambiguous interpretations of the law. After all, employers are not out there to get employees. True, but you’ll be smart to recognize that the employment contracts you signed were drafted and carefully worded by the company’s attorneys – not a neutral third party. If you signed them, chances are you are already in a weaker position when you go to court. And your employer knows it. Most employers don’t have malicious intent, they are just trying to protect themselves from employees that often can try to take advantage of loopholes in contracts. So they make it as bullet proof as possible, which ends up affecting those that are not malicious after all.
Let’s take an example. In recent times, female employees have filed a huge lawsuit against an employer alleging that female employees with the same experience and senirity are paid lesser than their male counterparts. They also allege that female employees are overlooked for promotions and bonuses on a regular basis. Now, the problem is that employers may be able to defend against this because it is difficult to prove that the female employees are equally productive as the male employees and there are a million other considerations that come into the picture. However in this case there are class action implications because the alleged actions were done over a large class, section or type of people. Such disputes may take years to resolve, maybe be never-ending when they go to court. And they are almost always settled out of court, unless they have legal precedent value.
So what does “out of court” really mean? It could mean that the two parties’ attorneys meet in a board room and negotiate a settlement. In todays' world , it usually means that the parties decide to use the services of a mediator. Mediators are much more likely to arrive at a quick, logical and fair settlement. Attorneys tend to go back to the strict contractual terms, legal arguments and their interpretation the law. The problem with that is that, like I said, on a day to day practical basis most regular people do not care about those legalities. It is about their job and their livelihood and their life. People just want a fair settlement. Mediators step outside of what is supposedly strictly said in the contracts and instead aim to reach down to the bottom of the parties’ motivations to arrive at a fair settlement. It’s not just a logical argument, it’s an honest discussion mediated by someone that cares to understand both points of view and guides the discussion in a direction that’s likely to produce results – not more conflict.
Mediation has become mainstream for union disputes, employment contract discussions, and even outsourcing contracts in recent years . If the trend continues, it is likely to get stronger in coming years.