How to Successfully Mediate Employment Claims
Working in employment law for 30 years as a trial lawyer, in-house counsel, and now as a mediator, had left me feeling that I had seen it all. Nothing prepared me, however, for the year-long interruption of civil trials caused by Covid-19. Employer and employee litigants were left without the means to resolve employment claims in court. The consequent backlog of civil lawsuits has led parties to utilize mediation in greater numbers. Because employment claims are more complex than other types of litigation, success at mediation requires counsel to carefully choose the right time, the right mediator, and the right approach.
Choosing the Best Settlement Window
Counsel should consider early mediation to avoid discovery and litigation costs. The challenge, particularly for the Plaintiff, is negotiating an agreement in the absence of discovery. Parties may mitigate this information deficiency by agreeing to take a key deposition or exchange certain information before early mediation. The emotions of the parties should also be considered. If emotions are running high, which is common in a sexual harassment or hostile work environment case, early mediation may be unproductive.
If early mediation is not advisable, another potential mediation window exists after a dispositive motion has been filed but before the motion has been decided. Mediation is often effective during this window because both parties face significant, case-changing consequences.
Characteristics of Successful Employment Law Mediators
While experience and knowledge of employment law is important, that alone does not enable a mediator to facilitate settlement any more than knowledge of contract law makes one a great negotiator. Another essential quality is the mediator’s willingness to fully prepare regardless of the amount of information provided by the parties. Even when the parties provide no information, it is critical for mediation success that the mediator read the court file and speak with each side’s counsel before the day of the mediation so the mediator wastes no time during the mediation learning information which was previously available. The mediator should come into each mediation with a customized settlement strategy for each party that gives the mediator a productive starting point for settlement discussions. Of course, the strategy will evolve as the mediator learns more about the case and the party’s positions and interests during the mediation.
Persistence is one of the most valued qualities in a mediator. See American Bar Association Section of Dispute Resolution: Task Force on Improving Mediation Quality Final Report, (Dec.2008). The Respondents to this ABA survey expressed dissatisfaction with mediators who threw in the towel too easily and sought mediators who exerted “pressure” to keep parties at the table.
Perhaps most importantly, you should select a mediator who is an experienced and skilled dealmaker. A dealmaker is adept at motivating parties with competing interests to reach agreement by identifying options, often hidden, that create value and satisfy mutual interests. A dealmaker’s skillset includes strong interpersonal and listening skills, diplomacy, creative problem-solving ability and empathy. While it is important for the mediator to understand the litigation process, it is very beneficial if the mediator has experience negotiating agreements between parties with diverse interests. The mediator must create rapport with the employee so the employee feels heard and understood while demonstrating to the employer that the mediator understands the challenges of running a business.
Choose Mediation Advocacy Over Trial Advocacy
Many litigators default to trial advocacy during mediation which may alienate the other party. Mediation advocacy is the skill of presenting one’s position in a non-adversarial manner to persuade the opposing party to reach a settlement agreement. Both sides gain the respect and cooperation of the other by demonstrating a willingness to work toward settlement while reserving argument for another day.
Rather than recounting a long litany of minor grievances, Plaintiff’s presentation should focus on the employer’s most egregious conduct and how the employee’s life has been affected. If the employee is articulate and sympathetic, the employee should be encouraged to speak.
The employer should act empathetically, not apologetically, so the employee feels heard. Employer’s counsel should respectfully present the legitimate business reasons for its actions and highlight challenges to the Plaintiff’s case without engaging in argument.
With trial dockets facing an unprecedented backlog, mediation has never been more important. Careful consideration of the best time to mediate, selection of the right mediator and a cooperative and empathetic approach will greatly enhance one’s chances for successfully mediating an employment claim whether representing management or an employee.