Mediations in Employment Law Cases

Mediation is an alternative dispute resolution method which is very common in employment law cases. Mediation is usually a non-binding, informal and confidential negotiation in which a neutral third party attempts to help parties to resolve the case. Mediations take place outside of court or arbitrations and can be conducted both pre-litigation or after the case has been filed and litigated. Usually, it is more beneficial to complete the discovery process for the mediation to be more productive and successful. However, the discovery is often associated with additional costs. A successful mediation also generally may result in lower attorney’s fees due to avoiding or curtailing discovery as well as other case preparation and presentations (as compared to a trial). These decisions depend on the specific facts which have to be individually assessed in each case.

Mediations are often used as an option for resolution due to the relative affordability, confidentiality and the potential instant positive outcome it may bring for the parties. Mediations are conducted by a trained neutral experienced attorney or a retired judge whose objective is to successfully mediate and reach a positive solution for both parties. Mediators have extensive skills and negotiating techniques. The mediator provides an evaluation of the case by applying facts to legal principals.

The mediation process offers both parties the opportunity to resolve a case in a significantly shorter period of time than litigation. For example, an employment law case may take a year or two to litigate. In contrast, one can mediate the case as soon as the pre-litigation demand is sent. The parties can chose any mediator they deem fit as long as the other party agrees. Usually each side proposes a few mediators and then the mediator is mutually selected. It is important to make sure that the mediator you are selecting or proposing has extensive experience in employment law. Typically, the parties split the bill 50/50 for the cost of mediation. However, because there is no set rule as to how much each party should pay, this aspect is negotiable. It is not uncommon for the employer to pick up the entire bill or agree to a different percentage split.

During the mediation, the mediator will introduce himself to the parties by describing his/her experience and training, explain the process of the mediation and move on to clarifying certain parts of the case facts and or applicable legal principles that have been provided to them by the attorney in a mediation brief. Reviewing these facts allows the mediator to understand how to target the mediation and offers an opportunity to get the information needed to fully evaluate the weaknesses and strengths of the case and advise the parties accordingly. During this introduction, the mediator will explain the confidentiality of the proceeding in addition to expressing that the client is in full control of the outcome of the mediation.

There is no set format for a mediation conference and the mediator’s and/or the parties’ preferences generally guide its process. Typically, these meetings occur at the mediator’s office but during the pandemic of COVID – 19, mediations have been held virtually and this option is still widely available today. During mediation, both parties are provided with their own separate rooms where each can communicate with the mediator without the pressure of having the other party present. This set up provides for a stress-free and productive environment.

Mediation usually takes full day. While half-day mediations are available as well, those are less productive. If the mediation does not resolve in resolution, the mediation can be extended, however additional costs can be accrued. In some instances the mediator will keep following up with both parties up until the trial date attempting to bring the parties to the settlement table.

The mediator always requests that a company person with authority to make settlement decisions be available or present at the mediation. At some point the mediator will start discussing the settlement numbers, usually this is a back-and-forth communication between the mediator and the parties regarding the amount that each one is offering or willing to accept. This final step is crucial to successfully mediate a case. Mediator’s expertise on reaching positive settlements are the meat and bone of mediations. In the end, a positive outcome is when both parties have agreed to a final amount to be paid out.

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