IS LITIGATION YOUR FINAL ANSWER? 709
understanding, provide for an open dialogue, and help generate
resolution options, not only can parties resolve the current
conflict situation, but they can also avoid future controversies.^199
Moreover, mediators are impartial third parties who have
experience in the mediation process and who have special
knowledge and understanding of the particular claims.^200 In
addition, mediation does not involve credibility determinations,
which could have negative consequences for future employment
prospects.^201 Finally, parties pursuing mediation will likely
expend less time and money to resolve the dispute, reducing the
burden of employees with little to no resources.^202
Opponents, however, argue that the mediation process could
impose “undue settlement pressures” on the weaker party.^203 As
mediation is a nonadjudicative and less formal process, the
weaker party may feel intimidated and forced to accept an unfair
agreement.^204 Moreover, the mediator may not always recognize
the power imbalance between parties.^205 As for the EEOC
mediation program, civil rights activists argued that language
barriers could restrict access for some plaintiffs pursuing
charges.^206 Since mediation is a voluntary and collaborative
(1971)); Seagriff, supra note 159, at 598.
(^199) See RISKIN ET AL., supra note 152, at 222–26; Sander, supra note
154, at 13–14.
(^200) See FitzGibbon, supra note 158, at 717 (citing Christopher A. Barreca
et al., A Due Process Protocol for Mediation and Arbitration of Statutory
Disputes Arising out of the Employment Relationship, DISP. RESOL. J., Oct.–
Dec. 1995, at 37–39); Seagriff, supra note 159, at 596–99 (discussing how
having a neutral third-party facilitator can help resolve workplace bullying
disputes).
(^201) FitzGibbon, supra note 158, at 718 (citing Sara Adler, Sexual
Harassment Claims Lend Themselves to Mediation, L.A. DAILY J., Feb. 18,
1994, at 7).
(^202) See id. at 717; Roselle L. Wissler, The Effects of Mandatory
Mediation: Empirical Research on the Experience of Small Claims and
Common Pleas Courts, 33 WILLAMETTE L. REV. 565, 567–68 (1997).
(^203) See Wissler, supra note 202, at 573.
(^204) Id.
(^205) See id.
(^206) See Swendiman, supra note 185, at 402–03.