This is Step 4 in my series explaining the Steps Involved in a Wrongful Discharge Case. This post explains how the mediation process works. In employment cases, the opportunity to mediate may arise early in the administrative process or after a law suit has already been filed.
Mediation is a form of alternative dispute resolution (ADR) and is a way of resolving disputes between two or more parties without resort to full-blown litigation. The goal of mediation is to reach a mutually acceptable settlement of the claims. The negotiation process is facilitated by a neutral third-party known as a Mediator.
If your case is in the administrative phase (at the EEOC or OCRC) the agency will appoint a mediator to handle the mediation process. The mediator may be an agency employee or a volunteer attorney. If your case is in court, the court may appoint a mediator or the parties could mutually agree to hire a mediator. Court appointed mediators may be attorneys who volunteer their time or paid court employees. Many mediators have received specific training in the art of alternative dispute resolution, but some have not. Unfortunately, unless you hire a mediator, you don’t have much control over who you get or how skilled they are.
Once the parties have agreed to meet for mediation, the process usually begins in a joint session. All of the parties and their attorneys sit across from one another. The mediator begins by outlining the ground rules: mediation is a confidential process, so, the mediator cannot be called as a witness to testify about anything that he/she may have heard during the negotiation. The mediator is not going to decide the outcome of the case, his role is to facilitate – which means he will go back and forth between the parties and try to find common ground to help the parties reach agreement.
The mediator usually allows the parties to make an opening statement about their case. In some cases, the mediator has received a written statement in advance of the meeting, but this opening statement is an opportunity to set the tone for the mediation. Some attorneys begin by attacking their adversary’s case and highlighting weaknesses. I prefer to set a conciliatory tone. I point out the strengths of my client’s case, but acknowledge that there are no guarantees in litigation. I make it clear that we are attending mediation in a good faith attempt to compromise.
Once opening statements are concluded, the parties are separated. Then the mediator practices shuttle diplomacy, going from one room to the other trading proposals. A good mediator will spend time talking to the parties individually, giving his/her perspective on the case. It is sometimes very helpful for the parties to hear a neutral opinion about the case. The mediator doesn’t care who wins or who loses. She has no stake in the case. If the mediator detects that the evidence on a certain point is weak, they can point it out and express how that might affect the outcome of the case. Experienced mediators can also give insight into the trial process and explain how a jury might view the case.
The mediator communicates settlement offers and counter-offers between the parties. Usually this involves a monetary amount, but there are also non-monetary terms to discuss. For example, reinstatement to the former position may be a way to resolve an employment dispute. If the parties are able to come to terms, the next step is to prepare a written agreement.
The agreement will contain the monetary terms and a full release and waiver of all claims. By signing it, the former employee is giving up all right to sue the employer in exchange for the settlement payment. Employers often demand confidentiality as to the fact and the terms of the agreement. On behalf of my clients, I demand at least a neutral employment reference. No-rehire clauses are also quite common. If mediation is not successful, the case proceeds where it left off. Although this may be disappointing, I never view mediation as a waste of time because even if we don’t settle the case, we learn something about it. We gain a clearer picture of the employer’s perspective and how they view our case. Every chance you get to gain insight into your adversary’s point of view is time well spent