Once the negotiations are underway, the parties usually move to their own rooms and the mediator practices something called shuttle mediation. The mediation can take several hours and it also may not settle. If it does not settle, the employee has the option to take it to court. Once it is in litigation, there are several times during the litigation, where the parties can attempt mediation. During each of these mediation sessions, if the parties settle, the litigation ends. If the parties settle prior to any litigation, it is customary for the employee to sign a waiver of claims, stating that they will not sue the company in the future for anything related to this complaint. Although mediation is a better option, both parties have to agree to mediation, as it is a voluntary process. The one exception is during litigation, when a judge orders the parties to go to mandatory mediation. This obligates everyone to attempt to resolve the case through mediation. The judge has deemed that the case is resolvable without going to trial. If the parties make a good faith effort to mediate and still cannot come to a resolution, the case continues to make its way towards trial.
The most common type of litigation in the employment realm is a wrongful termination lawsuit. I have been able to resolve these issues through employment mediation, avoiding the court battles to which both the employee and company hates to be subjected