The Deal Beyond Dollars: Non-Monetary Terms that Matter

Tue, Apr 21st, 2026 | by Miles Mediation and Arbitration | Article | Social Share

By Amy Adelman

When parties are preparing for mediation, it’s not uncommon to focus on financial resolutions.  But in disputes involving identity, emotions, loss, or impact to reputation — such as employment litigation or higher education conflicts — it’s often the non-monetary terms that ultimately drive the deal. Failure to think about these issues in advance leads to frustration. And a lack of clarity about non-monetary terms could unwittingly open the parties up to future litigation, when one of the most important goals in mediation is finality and peace.

In mediating employment and higher education disputes, I’ve found that ignoring non-monetary terms until late in the day may damage trust and create avoidable barriers to resolution. Here’s a closer look at some of those terms and why they matter to plaintiffs and defendants.

Common Issues in Employment Litigation

While every employment case is unique, there are several issues that often play a role in whether a case will settle:

Reinstatement or eligibility for rehire. If the parties are litigating a case alleging a discriminatory discharge claim or other allegation of wrongful termination, a common consideration is whether the parties will agree to reinstatement. For the plaintiff, reinstatement restores not only economic security, but also a sense of identity and purpose.

If reinstatement is not an option, a close second may be eligibility for rehire, perhaps in a different role, location, or department. In either case, the employer may want to consider the potential for retaliation claims. If a former employee returns to the workplace and is later terminated (again), the employee may sue for retaliation.

The same situation may arise if the employee is not reinstated but is eligible for rehire, as it leaves the employer vulnerable to future allegations of retaliation, with the former plaintiff claiming that he would have been hired but for the earlier lawsuit. Conversely, a plaintiff who thinks he has “won” by achieving reinstatement at mediation may be disappointed if the same conditions that led to the earlier job loss are still in place.

Confidentiality.  Often, employers will want to protect confidential information the employee had access to while employed, as well as the confidentiality of the settlement terms. Complete confidentiality may not be permissible in some settings, such as governmental entities that are subject to the Open Records Act. Again, the parties will want to carefully consider the extent to which confidentiality is critical to the deal and go into the negotiations with an understanding that complete confidentiality is rarely guaranteed.

Reputational considerations. Former employees often seek favorable letters of reference or expungement of records from their personnel files, as well as some control over what is announced about their departure. For employees who have been with a company for many years, a celebration in their honor may help to repair any perceived damage to their reputations and give them a sense of closure.

Employers, too, care about their reputation and may expect any resolution to include a broad non-disparagement clause. Navigating these issues, including the language of non-disparagement clauses, can be critical to a successful resolution and may be the final hurdle to finality. Early consideration of these issues is key, ideally before the termination occurs. If an employee is abruptly removed from the workplace in a very public manner, or the termination is shared widely, it may be difficult (though not impossible) to cure the damage to the employee’s reputation months or years after the fact.

Semi-monetary considerations. The parties will also want to consider the timing and tax treatment of any settlement payment, as well as who will cover the mediator’s fee. Access to health insurance and other benefits, such as career coaching, may also be important to the resolution.

Of course, employment litigation is not limited to cases involving termination.  If the plaintiff is still employed and has a pending claim arising from alleged workplace harassment, the non-monetary considerations of settlement are abundant. For example, an employee may request a promotion he believes he was wrongfully denied, a change in supervisor, or alterations to work duties, hours of work, or location. Other non-monetary solutions to explore might include increased opportunities to work from home, or additional training to position the plaintiff for future success.

Non-Monetary Terms in Higher Education Disputes

There’s been a dramatic uptick in the volume and types of litigation involving colleges and universities in recent years. Higher education disputes often include faculty, students, parents, or governmental entities, and add a heightened level of complexity and possible barriers to resolution. Non-monetary settlement terms may be key to success in mediation.

For example, a faculty member who is denied tenure may sue the institution for breach of contract or discrimination. And while money is often at the center of any resolution, the faculty member’s loss of identity and worth as a scholar cannot be understated. Thus, the plaintiff may seek a remedy that addresses those concerns, such as an award of tenure or an opportunity to reapply, even if that means extending the tenure clock.

If the dispute arises from the dismissal of a tenured faculty member, non-monetary considerations may include an award of emeritus status or the continued use of office space. Faculty and administrators may want to consider other non-monetary terms in resolving claims under the ADA, such as the ability to teach courses on-line rather than in-person, or the elimination or reduction of teaching requirements to allow the faculty to devote more time to research or service. Because many of these options would require high-level approvals and departure from well-established procedures, the parties should investigate relevant rules, lay the groundwork for those remedies, and set expectations regarding their likelihood well in advance of the mediation.

Litigation involving students also brings challenges and opportunities. For example, a student found in violation of the honor code or the sexual misconduct policy may be more focused on the possibility of expungement of his or her record than financial relief. In a complaint alleging a violation of Title VI that creates a hostile learning environment for students based on race or shared ancestry, settlements might include policy updates, the establishment of a Title VI office, and cultural sensitivity training. And in a tragic event resulting in student death, a scholarship or memorial in the deceased student’s name may be a meaningful way to honor and remember a valued member of the campus community.

Conclusion

In mediation, dollars may close the gap, but non-monetary terms often repair the underlying damage to the parties. Whether the dispute arises in the workplace or within higher education, parties who fail to identify and address these interests early risk leaving the table with unresolved emotions, damaged reputations, or agreements that invite future conflict rather than finality.

Thoughtful attention to non-monetary terms can transform a purely transactional resolution into one that provides closure, dignity, and lasting peace. By approaching mediation with a broader lens and a deeper understanding of what truly matters to all involved, parties increase the likelihood not only of settlement, but of a resolution that endures.

*Originally published in the Daily Report and reprinted with permission.

About Amy Adelman

Throughout her 34-year legal career, both in-house and in private practice, she has balanced her strong advocacy skills with a keen ability to resolve complex and emotionally charged disputes.

Amy’s mediation practice focuses on the wide range of disputes specific to higher education, including tenure and promotion issues, open expression and free speech, academic freedom, student disciplinary matters, Title IX, Title VI, campus safety, shared governance, and disability accommodation disputes. She also resolves the full range of labor and employment issues, such as Title VII, ADEA, ADA, FLSA, OSHA, FMLA, NLRA, non-competes, and employment-related contract and tort claims. Her empathy and ability to find creative solutions to complex problems serves her well in mediation.