Montana Wage & Hour law requires participation in mediation prior to formal contested case proceedings before the Department of Labor and Industry.
Mediation is a process where you and the opposing party exchange and/or choose possible solutions that resolve the claim. The mediator may suggest some options you have not considered. In some cases, you may find the mediator's options unacceptable. Since mediation is a non-binding process it is your choice whether you accept any options suggested by the mediator or the opposing party. Bear in mind that options for settlement are offered in the spirit of resolving your case. They are not intended to judge the validity of your position. They are intended as a means to end your dispute efficiently and before it reaches more formal levels.
As an impartial third party, the mediator can view the dispute objectively and assist the parties in exploring alternatives they may not have considered on their own.
The mediator facilitates information exchanged and does not decide, like a judge, who is right or wrong.
Mediation sessions are generally conducted with the parties by telephone either individually or in jointly attended conference calls.
The mediator does not have the authority to impose a settlement on the parties but will attempt to help them reach a satisfactory solution, which addresses all issues in conflict.
The mediator does not keep a record of settlement discussions. If requested, the mediator can issue a recommended settlement for the parties' examination. Once a recommendation is received you have 10 days to advise the mediator whether you accept with the recommendation or not.
Mediation sessions are private. Only parties and their representatives may attend mediation sessions.
The mediator will not divulge information disclosed to the mediator by a party or a witness in the course of mediation. All records, reports, or other documents received by the mediator while serving in that capacity are confidential. A document or record discoverable through legal discovery rules does not become undiscoverable because it has been given to the mediator. Under Montana law, the mediator cannot be compelled to divulge mediation records or to testify in regard to the mediation in any adversary proceeding or judicial forum. The parties shall maintain the confidentiality of the mediation and shall not rely on or introduce as evidence in any subsequent proceeding:
a. views expressed or suggestions made by another party with respect to a possible settlement of the dispute;
b. admissions made by another party in the course of the mediation proceedings;
c. proposals made or views expressed by the mediator; or
d. the fact that another party had or had not indicated a willingness to accept a proposal for settlement made by the mediator.
The mediation shall be terminated by:
a. The execution of a settlement agreement by the parties or a memorandum of settlement by the mediator identifying the settlement terms;
b. A written declaration of the mediator to the effect that further efforts at mediation are no longer worthwhile; or
c. A written declaration of a party or parties to the effect that the mediation proceedings are terminated.
The mediation process was created with the intent to avoid a situation where legal representation is necessary to resolve a dispute. However, it is not intended to discourage a party from seeking legal counsel if they so choose. The mediator will work with all parties including legal counsel if a party has counsel or at some point in the process obtains counsel.
Prior to mediation you should determine what type of settlement - normally a monetary range - within which you would approach a satisfactory conflict resolution. All areas of conflict should be included in the settlement effort if possible. i.e.; wages, taxes, unemployment insurance, wrongful discharge, discrimination, etc.
Mediation is an informal process and therefore very flexible. You are encouraged to take an active roll and let the mediator know what you expect from the process. The mediator has examined the file information, has experience in the subject areas of law, and can be used as a reference person. But remember, the mediator is not a judge. Please do not hesitate to let the mediator know your wants, special circumstances or availability for conferencing.
Your input is important to us in our efforts to make mediation more effective. If you have any feedback regarding the process, you may call or write us at:
Employment Law Mediation
Labor Standards Bureau
PO Box 201503
Helena MT 59602-1503