Mediators craft more than simple monetary solutions
By Kirsten McMahon, Associate Editor
Employment law disputes often require a mediator who can broaden the range of available tools in order to move towards a resolution, Toronto employment lawyer and mediator Kumail Karimjee tells AdvocateDaily.com.
“The difficulty is that the options can be quite narrow when people are focused on the dollar amount,” says Karimjee, a partner with employment law boutique Karimjee Greene LLP and the principal of Karimjee Resolutions Inc. “Money is a zero-sum game — one person pays it and therefore has less and the other person gets it and has more.”
He says that because in civil courts monetary damages are pretty much the only tool available, lawyers are often too focused on what a case is worth in dollars and cents.
One of the techniques an effective mediator can use is to listen and ask questions of the parties about what's really important to them, he says. A seasoned mediator can help craft more creative options that go beyond financial compensation.
“When a mediator digs deeper and asks those questions about what really matters to the party, you may find it's about reputation, the ability to move on and find another job or restoring relations with stakeholders,” he says.
“Sometimes it's as ‘simple’ as feeling a sense of closure — about being recognized for contributions that they made prior to the end of the working relationship,” Karimjee says.
The mediator — no matter the area of law — may listen to the narratives of the parties involved and ask questions that seek to elicit a better understanding of what's most important and help to facilitate a resolution, he says.
“By broadening the discussions and moving away from focusing solely on the money, you can hone in on what needs to happen in order to make parties feel comfortable enough to close the case and move on with their lives,” Karimjee says. “In the employment context, that could be a letter of reference, gifts in recognition of years of service or an apology."
He says he’s seen employment cases where the parties were able, through mediation, to revive an ongoing working relationship after the initial workplace conflict that led to litigation.
“It’s rare but it does happen,” Karimjee says. “The employee could come back or a consulting or referral arrangement may be possible.”