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Special problems with EMPLOYEE TERMINATIONS

In today's fast-paced business environment, it is not unusual for an employer to realize the need to sever its relationship with an employee who has a record performance problems, only to find that the documentation of prior coaching and performance discussions is either absent or does not support the termination decision.  The classic wisdom given out by most Human Resources professionals is to continue the poor performer’s employment until such a solid case for termination can be documented.  Another alternative to consider at this juncture is collaborative mediation.  In most of these cases, the employee knows that the employer is unhappy with his or her contribution, and often would actually prefer to move on to another situation.  By bringing in a third-party mediator, it is possible for the employer to clearly communicate its intended resolution to the situation, while avoiding the possibility of a future claim of constructive discharge.  Additionally, it gives the employer a chance to find out what kind of a "package" it would take to get the employee to walk away from the situation without raising any claims of wrongful termination.  By caucusing separately with the employee and employer ("shuttle" negotiations), the mediators can determine the employee’s "bottom line" without first disclosing what kind of a package the employer might consider giving the employee.  Additionally, any offers generated a by the employer in mediation are covered by California Evidence Code §1119, and therefore can not be brought as evidence by the employee in any future litigation, in the event the mediation was unsuccessful in reaching an agreement. 

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