Thirty plus years of handling employment disputes of one form or another has led me to reach several conclusions concerning these disputes and how to best resolve them. While mediation is more of an art than a science and no one thing will guarantee success at a mediation, there are a few things to consider that will increase the chances of a successful mediation of an employment claim.
First, mediation should be attempted after sufficient information has been exchanged for both parties to have an understanding of the strengths and weaknesses of their case, but still early enough for both sides to save costs. Without an exchange of information providing a basis for the claims, defenses to those claims and an idea regarding the damages at issue, the mediation will be less effective as the parties will spend the mediation attempting to understand the other side’s position. That said, it is seldom necessary for depositions and document production prior to mediation. One of the best ways to ensure that both sides understand each other is to simply require the parties to exchange the factual portion of the mediation submission to the mediator as well as the opposing party.
Second, selection of a mediator can be very important in the employment case. This means taking into consideration the personality of the mediator as it relates to the personality of the parties, as well as considering the mediator’s substantive experience in handling employment disputes. The parties should seek a mediator with a personality that will assist settlement – not impede it. Given the sensitive nature of most employment disputes, hiring a mediator that understands the volatile nature is invaluable.
Third, from the employer’s standpoint, consider bringing someone the employee liked or respected while employed with the employer to the mediation. And, for heaven’s sake, do everyone a favor and do not bring the alleged harasser to the mediation.
Fourth, parties often wonder whether having a joint opening session is a good idea. While much has been written in the mediation world about this topic, from my experience, opening sessions are a great opportunity for both sides to provide information they feel is important about the claim so that each has a better understanding of the issues. Do not cover up the bad facts and weaknesses of your case. Instead, disclose them early on and create credibility with the mediator and the other side.
Finally, have some rational explanation for your offers and counter offers. Be flexible and willing to listen and do not react emotionally if possible. Never forget that it is the mediator’s job to help both sides to reach a reasonable resolution and doing so takes time. Be patient and creative. While money is always a motivating factor, many employment disputes end up resolving because of non-monetary terms. As I learned in my EEOC training, many employment cases end up resolving with an apology being as important as any other term.