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  • July 11, 2018

    To Mediate or Not? Look Beyond the Law

    How do you determine if a particular case is a good candidate for mediation? The answer goes well beyond the legal substance and merits of the case, says Jill Hamill Sopha, who discusses key questions lawyers should consider when deciding whether to mediate.

    Jill Hamill Sopha

    mediation pieces

    Earlier this year, in my Labor and Employment Blog article “You Can Mediate That! A Fresh Perspective on Mediation,” I talked about when and how to use mediation strategically to resolve employment disputes.

    This blog post takes a deeper dive into a few key questions that can be asked to determine if your client would benefit from the process of mediation.

    Ask the Right Questions

    Nearly all substantive legal matters can be resolved through mediation. But, whether any particular case is a good candidate for mediation goes well beyond a consideration of the substantive law and legal merits of the case.

    Jill Hamill Sopha 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. She is also an adjunct professor at Marquette Law School where she teaches mediation advocacy.

    As such, the question isn’t whether the “legal issue” or “legal case” is good for mediation but, rather, whether the process of mediation would be beneficial in meeting your client’s needs.

    The following questions provide a framework for lawyers to consider when thinking about mediation.

    Is your client interested in owning his or her own decision-making, and resolving all aspects of the dispute – legal and nonlegal?

    Unlike with arbitration or litigation, where a judge or jury will make all of the decisions, mediation allows for greater party participation in the process. Specifically, the mediation process allows the parties to control whether and how to resolve their dispute.

    If you have a client that prioritizes controlling his or her own destiny and/or the ability to predict and plan for an outcome, mediation is an avenue to consider.

    Additionally, in many situations, including employment disputes, parties have (or had) a relationship that extends well beyond the legal dispute. Resolving the legal dispute while leaving other issues and potential disputes unresolved can result in future risk, and a less-than-satisfying outcome for the parties.

    Simply, if a broad picture of the dispute beyond the litigated matter is not considered, the party runs the risk of “winning the battle, but losing the war.”

    A skilled mediator can provide parties with the opportunity to truly resolve all issues – legal and nonlegal – in one full and final and mutually agreeable resolution.

    The process of mediation can help preserve the on-going details for relationships where parties need to continue to work together. Alternatively, mediation can help parties end relationships and clean up associated issues where parties decide to go their separate ways.

    Would your client benefit from a less formal process and the ability to craft and consider creative solutions?

    Mediation allows for a flexible process where the parties are provided the opportunity to “be heard” or to feel as if they have had their “day in court” in a way that may not be available in a court or arbitration.

    This can be done in a less formal manner that allows the parties to move from emotion-based reactive decision-making to proactive, collaborative 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 nonbinding manner.

    Unlike litigation or arbitration, mediation also allows parties to come up with creative ideas – often well beyond and different from what a judge, arbitrator, or jury could order – to resolve their dispute(s). In employment disputes, provisions such as no-reapplication, nondisparagement, and references are often very important to the parties. A skilled mediator can help the parties raise and discuss terms that may be difficult or risky to address in direct negotiations.

    Is your client concerned about the time and cost of litigation?

    Substantial attorneys’ fees can be financially difficult or even devastating to a client, and can act as an impediment to settlement.

    Mediation can help parties avoid the time and expense of litigation. This is especially true when mediation is done early in the process – as soon as the attorney has sufficient information to adequately advise his or her client on the merits of the case.

    Is there a desire for confidentiality?

    Especially when conducted before litigation, mediation helps parties avoid the public nature and potential related publicity that can accompany certain sensitive litigation.

    Of course, all mediation communications are inadmissible, which allows the parties to explore creative alternatives that they may be hesitant to raise outside of the mediation process. And, in the event that a matter does not resolve at mediation, mediation communications cannot be used in the legal proceeding.

    Is a durable agreement a priority for your client?

    Quite simply, when parties have the opportunity to participate in the process and decide whether and how to resolve their dispute, they are more likely to abide by the terms of the resolution reached.

    Answers Guide Thought Processes

    In conclusion, good lawyers are always considering:

    How is the best way and when is the best time to resolve any particular case?

    The questions above guide that thought process, and help lawyers determine whether a particular case is a good candidate for mediation.

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    Labor & Employment Law Section Blog is published by the State Bar of Wisconsin; blog posts are written by section members. To contribute to this blog, contact Andrea Farrell and review Author Submission Guidelines. Learn more about the Labor & Employment Law Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

    © 2023 State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.

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