Mediation in Wrongful Termination of Employment

What is Mediation?
Mediation is a process used in law as a method of Alternate Dispute Resolution
(ADR). It is a structured process to resolve disputes between two parties through a
neutral and independent third party known as the mediator who uses interactive
specialized techniques of communication and negotiations to prevent the parties from
going into the process of litigation and can instead have their disputes solved
efficiently through this process of mediation. 1 The mediator helps the parties reach a
point where all parties to the dispute agree on the decision and to reach a mutual
agreement. In India, the Mediation Act was passed in September 2023, however,
Section 89(1) of the Code of Civil Procedure, 1908 allows courts to recommend
various dispute resolution methods like arbitration, conciliation, judicial settlement, or
mediation. 2 Indian courts have been actively using this provision. Successful
mediation requires thorough preparation, effective negotiation skills, and an
understanding of the legal framework surrounding the dispute. 3 Mediation encourages
resolving disputes through constructive communication and cooperation.

 Mediation in Wrongful Termination of Employment
When an employee believes that they have been terminated wrongfully, that their
termination creates a contract breach, or that their legal rights have been infringed
they can approach the court and plead against wrongful termination of employment. 4
The employee can thus, challenge it in a court of law, seeking justice which could in
turn create a challenging situation due to the prolonged legal battles for the company.
Here is where mediation can play a role in helping the parties solve the matter without
actually going through the process of litigation in the court. To prove the wrongful

1 Legal Dictionary, Mediation - Definition, Examples, Cases, Processes (legaldictionary.net) (last visited Jan 14,
2024)
2 Kavita Sarin and Vishal Bhardwaj, India: The Mediation Act, 2023: Understanding The Key Features, (last
visited Jan 14, 2024) The Mediation Act, 2023: Understanding The Key Features - Civil Law - India
(mondaq.com)
3 Sultan Lawyers, https://sultanlawyers.com/blog/alternative-dispute-resolution-pt-1/ (last visited Jan 14,
2024)
4 The Mediation Group, https://www.themediationgroup.org/legal/employment-disputes (last visited Jan 14,
2024)

termination of employment is quite difficult in the court of law which is why they are
often encouraged to adopt this method of mediation.

 Benefits of Mediation in Wrongful Termination of Employment
o Cost Effective
Going to the courts can be very expensive. Mediation can help reduce the cost of
litigation. This makes it an attractive option for resolving disputes without the
burden of prolonged legal fees. 5
o Time Efficient
Traditional methods of litigation are very time-consuming along with being
expensive. This can release the companies from prolonged court dates and can
help speed up the process of dispute resolution.
o More confidential
The process of mediation is quite confidential and private sessions are held, unlike
the proceedings of the court which are public in nature. 6 This confidentiality of the
process helps both parties to speak up freely and without any hesitation or public
fear. 7
o Less Controversial
The process of mediation is generally less controversial than the lawsuits which
helps to reduce the stress associated with legal disputes and also helps preserve
the professional relationships between the employee and the employer. 8
o Helps create a Win-Win situation
It helps the parties to reach a mutual agreement and helps negotiate between them
thus creating a win-win situation. 9
o Control
It allows parties to retain more control over the outcome of the dispute. During the
trial, a judge or jury makes the final decision, but in mediation, the parties have a
say in the resolution of the issue and can work together to reach an agreement that
meets their needs. 10 This can result in a more satisfactory resolution for both

5 Danz Law PLLC, https://www.danzlaw.net/blog/2023/11/the-role-of-mediation-in-resolving-wrongful-
termination-disputes/ (last visited Jan 14, 2024)
6 Ibid
7 Ibid
8 Ibid
9 Ibid

parties, which can help to avoid future disputes and minimize the need for
additional legal action. 11
o Focuses on Mutual Understanding
It helps to bridge the gap of miscommunication between the employee and the
employer which might have led to perceived wrongful termination and helps in a
constructive discussion. 12
o Flexible Process
One of the great advantages of mediation is that it is a flexible process and it can
be shaped by the parties and their counsel to fit their needs.

 The Process of Mediation in Wrongful Termination of Employment
o The mediation is a voluntary process that may be undertaken by two parties to
resolve their dispute.
o At first, a Mediator is selected who will mediate the entire communication
between the grieved parties.
o The mediator is informed about the dispute in detail by both parties with their
supporting documents so that he has enough information to further the process of
mediation and can begin the communication between the parties.
o Mediation sessions are held and the mediator communicates settlement offers
negotiations and counter-offers between the parties. 13 Usually, this involves a
monetary amount, but there are also non-monetary terms to discuss. 14 For
example, reinstatement to the former position may be a way to resolve an
employment dispute. 15
o If the parties can come to terms, the next step is to prepare a written agreement. 16
Once that is done the mediation process comes to an end.

 Disadvantages of Mediation in Wrongful Termination of Employment
10 Sultan Lawyers, https://sultanlawyers.com/blog/alternative-dispute-resolution-pt-1/ (last visited Jan 14,
2024)
11 Ibid
12 Danz Law PLLC, https://www.danzlaw.net/blog/2023/11/the-role-of-mediation-in-resolving-wrongful-
termination-disputes/ (last visited Jan 14, 2024)
13 Law Offices of Roxi A. Liming, https://www.roxiliming.com/blog/how-does-the-mediation-process-work-in-a-
wrongful-discharge-case/ (last visited Jan 14, 2024)
14 Ibid
15 Ibid
16 Ibid

Although the process of mediation is quite helpful in multiple ways it also has some
disadvantages such as there is
o No Guarantee of Settlement
o Lack of remedies
o Lack of Finality 17
o Power Imbalance between Employee and the Employer

 Conclusion
Mediation as a means to resolve wrongful termination of employment is a new and
adaptable approach that has numerous benefits which makes it stand apart and makes
it an effective means of dispute settlement that is beneficial to both the employee and
the employer. It has great potential in dispute resolution in employment.

17 Sultan Lawyers, https://sultanlawyers.com/blog/alternative-dispute-resolution-pt-1/ (last visited Jan 14,
2024)

References
Sultan Lawyers, https://sultanlawyers.com/blog/alternative-dispute-resolution-pt-1/ (last visited Jan 14, 2024)
Legal Dictionary, Mediation - Definition, Examples, Cases, Processes (legaldictionary.net) (last visited Jan 14,
2024)
Kavita Sarin and Vishal Bhardwaj, India: The Mediation Act, 2023: Understanding The Key Features, (last visited
Jan 14, 2024) The Mediation Act, 2023: Understanding The Key Features - Civil Law - India (mondaq.com)
The Mediation Group, https://www.themediationgroup.org/legal/employment-disputes (last visited Jan 14,
2024)
Danz Law PLLC, https://www.danzlaw.net/blog/2023/11/the-role-of-mediation-in-resolving-wrongful-
termination-disputes/ (last visited Jan 14, 2024)
Law Offices of Roxi A. Liming, https://www.roxiliming.com/blog/how-does-the-mediation-process-work-in-a-
wrongful-discharge-case/ (last visited Jan 14, 2024)