Legal Words
Pin It
By Elaine Newman

Mediation of a wrongful dismissal action or a human rights complaint has to reflect the long-term human resources strategy.
If the long-term HR strategy is to “win every fight,” that approach must be reflected in the mediation process – low offers, minimal incremental moves to a finite bottom line, isolation of authority and rights-based positional narratives.

If, however, the long-term HR strategy is to improve relations with employees and maintain an image as a progressive employer, that approach must be reflected in every move throughout the mediation – active listening for mutually valuable interests and needs, creative generation of options and mutual problem solving.

When each stage in mediation reflects the long-term goal, as determined and articulated by the organization’s leadership, management of the process is “strategic.”

Ask this question: “What is our organization’s long-term HR strategy?” If you cannot answer this question, you have identified a problem. The strategic plan for HR management is the yardstick against which one determines strategy and measures success in each mediation instance.

Control your lawyer

Communicate the long-term HR strategy to your lawyer. If counsel is managing your mediation, she must be aware of your strategic goals, and give them voice at mediation. If the goal is improvement in employee relations, it is counterproductive to let counsel conduct a “winning” mediation, so do not leave this option. It is your HR strategy – and it is your choice.

Mediation preparation requires attention

Mediation time is expensive and should not be squandered hunting down basic data.

Preparation for mediation requires that basic data be known and analyzed by those presenting the positions and offers. In wrongful dismissal mediation, know the T-4 based salary, value of benefits, bonus entitlement, stock entitlement, pension entitlement and exact length of service. Calculate a monthly value of compensation including all appropriate items. Know the exact sums paid to the employee upon termination, and the period of time that benefits were continued.

If employment was terminated for cause, mediation preparation includes complete evidence of cause – memos, emails, video, photographic evidence, witness statements and investigation reports.

In a human rights case, preparation requires medical reports, ergonomic reports, memoranda of attempted accommodation efforts, emails of complaints and resolutions. Survey available suitable positions. Bring plans for return to work, a plan for monitoring reintegration and communication pathways. If you have reached the point of undue hardship, bring proof. Come prepared to shift the discussion to offering an exit package if necessary.

Manage your mediator

Mediation is a process that belongs to the parties, not to the mediator. Instruct her to manage the process in the way you want – in the way that is consistent with your goal for that process, and your long-term HR objectives.

Ensure that you use your mediator’s skills to the fullest. Exhaust her energies. Decide whether you want to negotiate with your mediator while you negotiate with the other party, or whether you trust your mediator sufficiently to tell her your goals and bottom line, and let her get you to the goal.

Ask your mediator for negotiating advice at critical stages. She knows what’s going on in the other room, and you do not. She will know when you are in danger of risking the process.

Appreciate the power of apology

Even the million-dollar earner needs an apology if the termination was implemented dishonestly or in bad faith. An apology is critical in resolving many difficult wrongful dismissal and human rights complaints. In a recent mediation, counsel for an American defendant flew to Toronto from Los Angeles just to offer a heartfelt apology to the terminated plaintiff. It was an extremely effective conversation, and allowed for good settlement discussion. Without that initiative, the parties would have faced a lengthy trial for punitive damages.

There are no limits

The range of options in settling employment disputes is limited only by the courage and imagination of the parties. Bear in mind that you’re dealing with a terminated or disabled employee, and think about what you would wish for yourself if you were on the receiving end of the termination letter.  ■

Elaine Newman is a senior mediator, arbitrator and author. She teaches an advanced course, “Strategic Grievance Handling,” at Queen’s University Industrial Relations Centre, offered in Ontario and British Columbia.
Pin It