I have been mediating employment related claims since I made the transition from practicing law full-time to mediating full-time more than 30 years ago. Before making the leap, I participated in mediations as an advocate for my clients. Regardless of the chair one sits in, these mediations are very challenging because they involve strong, complicated and deeply felt emotions. The court system, in my view, is poorly designed to deal with emotions when emotions are the driving force in a lawsuit. As a consequence, my experience has convinced me that a mediator cannot run away from or minimize emotions; to be an effective and helpful mediator in employment cases requires a unique skill set that allows for those emotions to be acknowledged, heard and talked about.

Employment law covers claims that a person has suffered adversely in their employment because of their race/color, age, religion, sex, sexual identity, national origin or disability.  Rarely are there facts of the sort relied on to resolve disputes in other areas of the law, i.e. statements, in writing or overheard by others, that unequivocally express a person’s state of mind. Behavior that derives from bias and prejudice is seldom acknowledged as a conscious or willful act. I do not think I am overstating things when I say that controversies involving claims of injury based on bias and prejudice are among the most difficult to resolve.

I bring three essential strengths to the mediation bargaining table:

  • ·      I have the experience and insight necessary to encourage both sides of the mediation to engage in the negotiation process.

  • ·      I know and understand the law that is the backdrop for any negotiation concerning employment discrimination claims.

  • ·      I have actually courtroom experience litigating employment discrimination claims in front of judges and juries. 

The struggle to establish merit as the only legitimate basis for hiring, promoting and retaining a worker has been central to the life of this country since its beginning. The resolution of controversies that allege bias and prejudice poses a daunting but not impossible challenge. The ones where the bias is expressly revealed are a small percentage of all claims. The remaining claims are based on implicit bias; how bias/prejudice is both expressed and experienced. Then there is the question of which claims are compensable under a statutory scheme that is complicated and often obscure, like Schrodinger’s Cat paradox. What’s A Cat Got To Do With It?   https://bensonmediation.com/blog

Mediating employment discrimination claims is different than mediating any other claim. And the mediator matters.