Employees who engage in legally protected activities — such as reporting discrimination, harassment or safety concerns or expressing political views — are sometimes faced with retaliation by their employers or coworkers. Resolving these conflicts is important to maintaining a healthy work environment and to avoiding legal consequences. Mediation offers an approach to addressing these issues in a forum where the concerns of both parties can be heard and resolved effectively.

Retaliatory action can take several forms, some of them not overt. These are some common signs of retaliation in the workplace:

1. Negative performance reviews — There may be a sudden decline in an employee's performance reviews following the exercise of legally protected activities. Such reviews may lack objective criteria and fairness.
2. Isolation and ostracism — An employee who has engaged in protected activities may find himself or herself isolated or ostracized by supervisors or even colleagues.
3. Unwarranted disciplinary actions — Sudden disciplinary actions may be taken against an employee, including write-ups, suspensions or demotions.
4. Unexplained job changes — An employee may experience unexplained and sudden job changes, such as shifts in responsibilities, transfers or changes in work location.
5. Increased scrutiny — An employee may notice heightened employer attention and monitoring of their work.
6. Hostile work environment — An employee may experience bullying, harassment or derogatory comments.

When retaliation is suspected, addressing the issue through mediation is an effective approach to finding constructive resolutions. Mediation provides the following advantages:

1. Neutral third party — The process is run by a trained mediator who remains impartial, helping both parties reach a mutually agreeable resolution. This avoids potential power imbalances that may exist in direct employer-employee negotiations.
2. Confidentiality and voluntariness — Both parties can speak openly without fear of repercussions. There is no pressure to participate and either side can walk away.
3. Open dialogue — Employees can voice their concerns and feelings and employers can explain their actions, so that each side gains a better understanding of the other’s perspective.
4. Customized solutions — The mediator can work out creative remedies that go beyond financial compensation. These could include changes in workplace policies, additional training and other measures to prevent future disputes.
5. Cost-efficiency — The mediation process avoids litigation, which can be expensive and time-consuming.
6. Preservation of relationships — Mediation can help preserve relationships within the workplace, making it possible for employees and employers to continue working together harmoniously.

Perhaps the strongest advantage of using meditation is that it removes the need to prove retaliation did or did not occur. Retaliation claims are not always susceptible to objective evidence, since the suspect conduct may come from a mixture of proper and improper motivations. A skilled mediator can get at the root causes of the dispute and help the parties discuss disagreements without assigning blame.

At Quinn & Kronlund, LLP in Stockton, we are experienced in mediation of all types of employment matters in California. Please contact us online or call 209-943-3950 to learn more about our services.