When It’s Not All About Money: Non-Monetary Terms at Mediation

Nearly every time a party prepares for mediating a civil rights or employment law claim, they are expecting to be talking about money. And it is true that money is usually the dominating topic during any given mediation. 

But what about when the case is not all about money? Or when the parties cannot reach an agreement about money - and the case is heading towards an impasse? 

These are the crucial times when it is important for a party/party advocate to consider whether there are non-monetary terms that might be able to bridge the gap. And it is here when creativity is key. 

Take, for example, a case involving a whistleblower at a medical facility, who alleges they were terminated after complaining about inadequate protective personnel equipment. While the whistleblower may be set on certain financial goals, they may also be motivated by a settlement term that includes the employer purchasing new protective personnel equipment for all employees in their department within a certain period of time. Or the employee who made complaints about pay equity, who may place a value in the employer agreeing to undergo a confidential pay equity audit as part of mediated settlement terms, and in lieu of a higher dollar value settlement. 

Prior to going into a mediation, parties can increase their change of a mediated resolution by identifying potential non-monetary terms for which they may place a value during settlement. 

In addition to nonmonetary terms unique to each fact pattern, common negotiated non-monetary terms to a mediated settlement for an employment or civil rights claim may include: mutual general release, non-disparagement (state specific), confidentiality as to certain terms/facts (state specific), agreement to not contest unemployment benefits, and a neutral reference/reference letter. A separated employee may also place a value on an employer agreeing not to contest their eligibility for unemployment benefits to avoid a protracted administrative process. 

Similarly, a terminated employee may find a value in the employer agreeing to recategorize their termination as a resignation or agreeing to not contest that the employee resigned to boost their future job opportunities (and assist with financial hardship mitigation). 

Employers may also consider negotiate terms that include: return of company property, confidentiality as to trade secrets/restrictive covenants (state specific), no re-hire (state specific), liquidated damages, cooperation clauses, arbitration provisions. 

At Moxie Mediation, Mediator Lindsey Wagner thinks outside the box when it comes to your mediation. Contact us today to schedule your employment law or civil rights mediation with Mediator Lindsey Wagner.