Employment law mediation preparation requires objective risk analysis, realistic expectations, and careful planning to reach meaningful settlement opportunities. Strategic communication, flexibility, and client readiness help reduce disputes, manage costs, and improve the chances of a successful resolution.
By Brad Nakase, Attorney
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Are you getting ready to have your employment matter mediated? Although there can be very real distinctions between the preparation for trials and mediation preparation, you should approach the process with the same seriousness as you would when prepping for a trial. I’d like to offer some helpful tips to assist you in getting ready for an employment legal mediation as a mediator with expertise in employment mediations.
Employment law mediation is typically required for employment lawsuits, regardless of whether they are filed in state or federal court. You might as well start mediating now since you’re going to have to invest time and money in it. As it happens, I support early mediation or pre-suit mediation.
People may claim that you don’t know every detail at the start of the case or that you didn’t make any discovery, but these situations usually involve intense emotions. If there is a need to apply brakes prior to the case developing a trajectory of its own, mediating it early in the process, before parties start digging in their heels, can be beneficial. Even while you might not have access to all discoverable data, you most likely have enough knowledge to determine the parties’ objectives and areas of interest, which creates the possibility of a settlement.
No matter when the employment law mediation takes place, being ready for it encourages lawyers to meet with those they represent and conduct a realistic, unbiased risk appraisal. This includes answering queries like, “What would be the best result if we filed a lawsuit?” What dangers exist? How is the opponent’s company being disrupted by this lawsuit from the defense perspective? What does a winner-takes-all strategy actually entail?
Lawyers typically don’t take the time to ask their clients these questions until they have an arbitration or other deadline coming up. By recognizing the case’s true strengths and weaknesses and admitting that there are results other than what your client wants, decision trees and other similar tools assist your clients in overcoming the winner-take-all mentality!
Your client will have a more realistic estimate of what to expect if the matter fails to resolve at mediation, thanks to the risk analysis. The first step in reaching a compromise is having a realistic understanding of the alternatives.
Use the impartial evaluation of the matter to discuss damages. What remedies can be claimed, and how are they determined? For instance, your lost income is important, but the extent to which you liked your job is not.
Your situation, the rules of law, the paperwork, the possible witnesses (their manner and testimony), and the advantages and disadvantages of your position should all be well understood, irrespective of whether you are representing the plaintiff or the defendant. If witness testimonies will be used in the employment law mediation, you should get them. You want your papers to be organized.
You may craft the case’s “narrative” in the same way that you would craft a jury’s opening statement. However, there are some significant distinctions between preparing for a trial and preparing for an employment law mediation. Even though you want to argue your position and support the person you represent, if you are serious about finding a solution, you must be able to see things from the other side’s point of view and give careful thought to what alternative options, besides a winner-take-all strategy, will settle the conflict.
Knowing every detail of your case from a legal and factual standpoint should be just one aspect of your preparation. You should discuss the entire procedure with your client and your sense of what is and is not vital to accomplish, as well as what is fair to expect.
Ask yourself, “What motivates the person you serve and the opposite side?” and actively seek out the answer. The two sides would not be in mediation if it weren’t for the reality that they were unable to settle their disagreement for a variety of reasons. The parties must acknowledge that patience, empathy, and compromise are not derogatory terms if the process of mediation is to be effective. With these ideas in mind, a lot can be accomplished even if an agreement is not reached during the employment law mediation.
Please think about the following to answer this tricky question:
Before the employment law mediation, you could want to go over a list of appropriate monetary and non-monetary settlement terms after taking into account the “motivating factors” & interests. This will help you begin to create a universe of realistic expectations and possibilities. Establishing confidence with your client is vital, as is laying the foundation for flexibility and fluidity when you explain that, in the mediation, you might need to look outside what the client considers the “bottom line.”
Then there’s the aspect of preparedness that is practical. Your client must be ready to hear the other viewpoint as well as the reality, laws, and procedures that might not be favorable to them. Put another way, make an effort to steer clear of surprises, especially unpleasant ones.
In the opening declaration, what’s the opposing side expected to say in response? What are the strengths, weaknesses, & claims or defenses of each side? Before mediation, did you inform your client of these facts? In a “what if” situation, you can employ the mediator to successfully bring up delicate topics, but the mediator must be aware of the things you have and haven’t talked about with your client.
In order to avoid your client reading a five-page agreement on settlement for the first time at five in the evening, following an exhausting day of negotiating, I also advise going over a typical agreement before the employment law mediation. Naturally, there will be significant differences in the terms, but your customer will be aware that basic contractual provisions like privacy, no-rehire, broad releases, contracts not to slander, agreements to supply neutral recommendations, and resignation wording are expected.
Covenants against competition, confidentiality of information, indemnity, intellectual property declarations, and agreements not to promote claims or collaborate with other plaintiffs may all be included in the agreement. Your client ought to think about the tax consequences of these payments and the desired allocations for them on both sides as an issue of deductibility, tax obligation, and finality, as the majority of settlement agreements include a financial element.
As you get ready for the mediation, lastly, think about the mechanics of the session. If you are planning to use Zoom or any comparable app, make sure you have everything you need beforehand. Your internet connection speed and your audio and video must be working well. Choose a quiet, private space with enough lighting.
Advise your client to wear comfortable & professional clothing. One way to help your customer escape the constant back and forth and unavoidable waiting “in another room” would be to suggest that they bring something as basic as a relaxing playlist. The employment dispute mediation process is as slow as purchasing a car. It could take you a whole day to deal with the facts, the legislation, and the emotions.
At the time of employment law mediation, ensure that your client is relaxed. You can recommend that they get a spare jacket/sweater in case the room gets too cold. When you are not mediating at a proper facility that offers catered lunches, drinks, and snacks daily, bring some eatables/munchies. To provide emotional support, inquire if your client would like to bring a partner or friend. Be ready to discuss this matter with the other party, your client, and the mediator. Keep your patience and be ready for the long road.
The majority of employment negotiations will last for at least one full business day. It could make all the difference if you commit to sticking as long as it takes. Artificial timelines are rarely beneficial to the persons involved. Efficiency is anticipated. You have to be patient. And perseverance will prevail.
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