As all good lawyers know, the vast majority of cases resolve without a trial.
Litigation, and often arbitration, have become extremely time-consuming and costly to pursue. They inevitably exercise a toll on the participants emotionally and financially, and take time away from other business and personal priorities.
Employment litigation is especially risky. Defendants risk paying both sides attorneys’ fees, and negative publicity and lost opportunity costs. Plaintiffs risk time, expense, and stress for a possible zero-dollar verdict.
The high emotions that often accompany employment disputes, combined with differing views of the facts and law, can also impede resolution.
Given this practical reality (that nearly all employment cases can and do resolve short of trial), employment lawyers are well-advised to keep the following question front of mind:
How is the best way and when is the best time to resolve this matter?”
So, how is the best way to settle a matter?
Jill Hamill Sopha, U.W. 1996, is an employment attorney mediator at Sopha Mediation LLC in Milwaukee, where she focuses her practice on helping employers and employees resolve workplace disputes and litigation though mediation.
Most matters can and do resolve through direct attorney to attorney negotiation. But, for those matters that don’t settle through direct negotiation, or where the attorneys believe that direct negotiation is not in their client’s interest, mediation is an alternative to be considered.
Mediation is best viewed as a “negotiation enhancement” or a “facilitated negotiation” – not some separate, stand-alone event. A key goal of the mediation is to “fix the negotiation” by identifying and resolving the impediments that have prevented resolution.
And when is the best time?
Generally, the best time to mediate an employment matter is “the sooner, the better.”
In mediations, just like in any negotiations, you need to face the prospect of settling a case without complete information. More specifically, you need to determine when you have sufficient information to adequately, but not necessarily thoroughly, advise your client on the merits of the case.
Mediation is best viewed as a ‘negotiation enhancement’ or a ‘facilitated negotiation.’
Often, you need much less information than you may think. You may have a good grasp of the facts right away. Or, it may be reasonable to predict that more information will inevitably produce facts that are helpful (and not so helpful) to your client’s position.
Remember, if there is some critical information that you truly need, heading down the path of formal discovery is not your only option. A good mediator can and should help the parties agree to an exchange of critical information as part of pre-mediation discussions.
Benefits of Early Mediation
There are many benefits of early employment mediation.
Of course, there are cost savings. Also, it is not uncommon for the fees and costs incurred during litigation to make settlement more difficult to resolve down the road.
Early resolution can also help parties avoid the hardening of positions that often occurs when litigating highly emotional matters such as employment litigation. It can also avoid public embarrassment or the discomfort that may come with litigation or other public proceedings.
The best time to mediate is when you have sufficient information to adequately – but not necessarily thoroughly – advise your client on the merits of the case.
Certain sensitive matters such as sexual harassment claims, executive disputes, claims involving confidentiality breaches or trade secrets, and allegations with potential class claims are just a few examples where the parties may prefer an early and confidential resolution process.
As employment lawyers ask “How is the best way and when is the best time to resolve this matter?” they should consider strategically using mediation to help resolve workplace and employment disputes and litigation.
Mediation Can Preserve an Existing Employment Relationship
Matters where a company and its employee have reached an internal “impasse” provide a great opportunity for mediation. Issues ranging from claims of discrimination, retaliation, harassment, failure to accommodate, etc., are often resolved internally.
But, what about when they aren’t?
An experienced mediator may well be able to help the parties find an agreeable resolution, and thereby avoid the time, expense, and distraction of litigation.
This is also true for a wide variety of internal employment disputes, ranging from accommodation requests, to failure to promote claims to post-investigation and post-performance improvement plans.
A well-conducted workplace mediation can increase the durability of an agreement, improve the employment relationship and reduce the likelihood of future disputes.
These types of situations – where the employment relationship is strained but will nevertheless continue – may benefit from a sit-down discussion or development of next steps with a third-party neutral. In situations like these, companies may consider offering or agreeing to pay for a mediator in order to avoid the business and legal risk involved with an ongoing employment dispute.
In addition to avoiding the time and expense of a legal proceeding, mediating current employee workplace disputes has the additional benefit of providing a process where the parties have the opportunity to be heard, to participate in the process, and to agree to any resolution.
Mediation Can Help to End an Existing Employment Relationship
What about those situations where an employment relationship has ended or needs to end, and the parties want a quick, confidential resolution? An experienced mediator can help parties negotiate a workable resolution, for example, to a non-competition or trade secret dispute. Mediators can also help the parties work out the details of a difficult or high-level separation.
Negotiated resolutions offer the opportunity for terms that likely have value to your client but will not be available if the matter goes to litigation or arbitration – such as a letter of reference or a confidentiality or non-disparagement provision.
A mediator can bring options to the table that the parties may be hesitant to raise in direct negotiation.
Discussions with a mediator can also help parties bring options to the table that they may be hesitant to raise in direct negotiation. For example, it is not uncommon to have a mediation where one or both sides wish to end the employment relationship but, for obvious reasons, are hesitant to raise this option.
Working with a mediator experienced in these types of discussions can help the parties raise and work through issues that they may not be comfortable raising in direct negotiations.
Being ‘Too Far Apart’ Doesn’t Rule Out Mediation
Matters are in mediation because they have not yet and do not appear likely to settle through direct negotiations (as most matters do).
It goes without saying that all cases that go to mediation are at “impasse,” where direct negotiation has failed; yet a very high percentage still settle at mediation.
So, being at an impasse should not be a reason not to mediate, but rather should be a reason to consider mediation.
Moving from Impasse to Resolution
Just how do mediators help parties move from impasse to resolution?
As an initial matter, people cannot make good decisions when they are overly angry or upset. As such, a good employment mediator will dedicate a limited – but essential – period of time to allow parties to express themselves to the mediator.
This ability to “be heard” by a neutral third party is a unique benefit to mediation. It works to help the parties to move on from their focus on the past to a new focus on what’s next – the future (i.e., resolution of the dispute). This time also allows the parties to build trust in the mediator – this trust is essential as the day progresses and difficult messages may need to be conveyed.
This time also provides the mediator with valuable information about what is most important to the parties, which is essential when it is time to develop creative solutions for effective problem-solving.
Mediation also allows the parties the opportunity have a neutral third party evaluate the strengths and weaknesses of their respective cases in a non-binding and confidential manner. A good mediation process will ensure that parties appreciate the inherent uncertainty of proceeding with litigation, as well as the certainties associated with litigation – namely, cost, stress, and time away from other business and personal priorities.
Parties should also be made fully aware of the factual and legal weaknesses in their cases in an effort to ensure that no stone is left unturned in the search for a resolution.
Never Too Early
Given that nearly all employment disputes resolve short of trial, it is never too early for an employment lawyer to start considering “how is the best way and when is the best time to resolve this matter?”
In those efforts, mediation can be used strategically to help clients efficiently and effectively resolve workplace disputes and litigation.
This article was originally published on the State Bar of Wisconsin’s Labor & Employment Law Section Blog. Visit the State Bar sections or the Labor & Employment Law Section web pages to learn more about the benefits of section membership.