The Benefits Of Mediating Noncompliance Matters – Sooner Rather Than Later

Stakes over noncompliance are getting higher. Partly because there is more to keep abreast of, and partly because of increased enforcement.

Recent changes in workplace law reflect a robust effort afoot to find, crack down on and deter future noncompliance infractions. There is a spotlight on worker classification, wage payment, minimum wage accuracy (tip offset calculations), overtime, and workplace safety, in addition to medical leaves, parental/maternity leaves, FMLA availability and accounting, hiring practices, and disability qualification and/or accommodation, among other matters.

Upon first realization of a noncompliance issue, it is natural for some degree of the following to take place:

1.) Discovery
2.)  Panic
3.)  Address in person
4.)  Failure to resolve
   4.a.)  Relations sour and exacerbate the conflict
5.)  Litigate? Or … Mediate.

Mediating first may feel out of order, the thinking being “If things didn’t work out with a direct face to face, why should I expect someone to yield absent judicial involvement?” Mediation is, however, worth utilizing early on. It can work because it provides things that are missed in taking a subjective approach:

  • distance,
  • filtering, and
  • organized thinking and problem solving.

Mediation is low risk damage management; while litigation
out of the gate and its exacerbation of tension may, in fact, be overkill. Compliance issues are relatively easy to assess.  It’s the “how to resolve” aspect that mediation takes care of.

Many cases coming to me now correspond to a heightened awareness of such compliance concerns and – not surprisingly – the strain of potential extraordinary damages (e.g., trebling, attorneys fees, and interest). 

The conflicts in these cases reveal varying degrees of misunderstanding and miscommunication about the law and legal responsibilities. Fortunately, these are matters especially suited for mediation. Consider, therefore, the benefit of sooner addressing, clarifying and correcting compliance issues, versus:

  • the time and expense of bloated courtroom dockets,
  • the relatively modest amount of time it takes to assess such matters
  • the persistent, and sometimes worsening, complications of disputes, particularly with a current employer/employee,
  • the inherent expenses in ongoing conflict and the possibility of escalating costs/losses such as personal/business reputation damage, interruption in career or professional advancements, and drains on valuable time, to name a few, and
  • the potential for attrition (lost personnel/professional investments and stability), erosion of workplace morale and commitment (productivity).

Early mediation is a sound, pragmatic, and expedient option.  It can:

  • provide immediate relief, enabling parties to move on with their jobs and business quickly
  • help parties incur as little as possible of the damage that litigation otherwise inflicts  
  • let participants maximally and optimally leverage money available to resolve the dispute and enhance the likelihood of settlement.  

Keep in mind that mediation does not do away with the litigation option and the vindication/damages potentially available. Litigation, however, can complicate, delay and even reduce the chances for a more beneficial resolution – mediated or otherwise.

If you have any matters pending now or developing, talk to a mediator. Choose someone who is adept at resolving workplace conflict; someone with extensive experience in and exposure to a broad variety of personalities, conflicts, workplaces, industries and resolutions. This will pay dividends by saving time, earnings, jobs, workers, HR and management resources, and more.

About Maria Hanna Joseph

Maria Hanna Joseph, principal of Joseph Mediation, is an Attorney-Mediator who is highly regarded for her experience and ability to resolve employment, workplace and organizational disputes. She has served more than 2,000 matters over her 20 years as a mediator and her 29 year employment law career. With care, expedience and economy, Maria helps attorneys and parties achieve settlement in nearly every mediation. Moreover, her pragmatism and perseverance bring about purposeful settlements; products of Maria's insight and creativity, gained by her depth of experience and training. These qualities, along with her demeanor and the trust she engenders, have earned Maria a reputation for being able to manage extremely challenging circumstances and settle a wide variety of cases. Maria is available to provide services in-person or virtually (utilizing teleconference and desk-top videoconference resources) throughout Massachusetts, New England and the U.S.
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