A step often overlooked in employment mediation is the customization of the mediation design. Advocates and mediators alike, all too frequently, fall into the rut of “cookie cutter” – one size fits all mediation. It is essential that the mediator be creative and articulate in determining- with the parties- the design of the mediation most likely to produce a satisfactory result. Factors to be kept in mind when designing an employment case for mediation are: (a) the nature of the accusations, (b) the personalities of the accuser(s), the accused and the institutional decision makers, (c) the Conflict Resolutions styles of the participants, (d) the workplace dynamics and (e) the public interest issues. Design options include a pre-mediation conference between counsel and the mediator, pre-mediation caucuses, staggered starts, co-mediation, a pre-mediation discovery plan, an agreement as to mediation attendees, etc. The advocates and the mediator might discuss their expectations for the mediation. Are the participants anticipating a distributive negotiation, an interest – based or problem solving mediation process , or are they looking for transformative opportunities Do the participants want the mediator to be evaluative, facilitative or is some hybrid mix preferred Frequently, a mix of these mediation styles and techniques is required for effective mediation.
