legal words
service. Calculate a monthly value of com-pensation
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 re-quires
medical reports, ergonomic reports,
memoranda of attempted accommodation
efforts, emails of complaints and resolu-tions.
Survey available suitable positions.
Bring plans for return to work, a plan for
monitoring reintegration and communi-cation
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 ad-vice
at critical stages. She knows what’s
going on in the other room, and you do
not. She will know when you are in dan-ger
of risking the process.
APPRECIATE THE POWER OF
APOLOGY
Even the million-dollar earner needs
an apology if the termination was im-plemented
dishonestly or in bad faith.
An apology is critical in resolving many
difficult wrongful dismissal and hu-man
rights complaints. In a recent
mediation, counsel for an American
defendant flew to Toronto from Los
Angeles just to offer a heartfelt apolo-gy
to the terminated plaintiff. It was an
extremely effective conversation, and
allowed for good settlement discus-sion.
Without that initiative, the parties
would have faced a lengthy trial for pu-nitive
damages.
THERE ARE NO LIMITS
The range of options in settling employ-ment
disputes is limited only by the
courage and imagination of the parties.
Bear in mind that you’re dealing with a ter-minated
or disabled employee, and think
about what you would wish for yourself if
you were on the receiving end of the termi-nation
letter. ■
Elaine Newman is a senior mediator, arbi-trator
and author. She teaches an advanced
course, “Strategic Grievance Handling,” at
Queen’s University Industrial Relations
Centre, offered in Ontario and British
Columbia.
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