Mediation in the Employment Context

Mediation is a form of alternative dispute resolution ("ADR"), a set of party-driven procedures designed to resolve a legal dispute without a formal trial before a judge. Instead, a mediator assists the parties to come to a resolution of the matter. Mediation is usually a form of non-binding ADR, meaning the parties can walk away from the process at any time. However, a good-faith attempt at mediation may be ordered by some courts or may be conducted by the court itself (usually called a "mandatory settlement conference" or "MSC").

Because mediation is informal, there are as many different ways to go about it as there are mediators. Often the each party will prepare a "mediation brief" -- essentially a statement of the party's position identifying key evidence, testimony, and legal authority.

The mediator's job is usually to weight the evidence and legal authority and assist each side in a rational evaluation of their chances at trial. The mediator brings impartial legal experience to the issues, assisting the parties to find a middle ground.

However, mediation can play a secondary role -- that is allowing the employee to air his or her disputes in a safe place. If appropriate, a good mediator may allow the parties to address one another, and explain what happened from their perspective. Although this by itself might not assist in resolving the underlying legal positions, it can have important implications in the case.

An employer-employee relationship is often an emotional one. Unintended slights might be misconceived on either side, and may be amplified by litigation. These emotional issues may lead to poor results at the mediation (i.e. no dispute resolution). However, mediation allows the parties to control their fates in a way that a regular trial of the issues does not:

• Mediation and settlement are usually confidential; whereas trial and verdict are usually public.
• Mediation cost is usually significantly lower than trial cost.
• Creative solutions can be implemented by the parties; whereas the courts are bound to legally supported awards.
• Trial is disruptive to business and personal schedules.
• Uncertain litigation can affect a corporation's ability to get funding or the like.
• "Dirty laundry" gets to stay in the dark, avoiding bad press and other lawsuits.
• Jury verdicts can be much higher than the parties dream of; and trial can be an all-or-nothing battle.

To enjoy these benefits, employers must be able to detach themselves and see resolution as a business decision. Whereas, employees must understand that usually they bear the burden to prove their case, and that such proof is often an uphill battle. Experience attorneys know when mediation is appropriate and when it will just add to the cost of litigation.