Pre-Mediation Decisions, Part 1

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Pre-Mediation Decisions that, if Made Incorrectly,  Can Derail an Employment Mediation Before it Begins

Part 1

There are three pre-mediation decisions that can make or break an employment law mediation before the attorneys and parties ever show up. First, who should be selected as the mediator? Secondly, who should be present at the mediation and finally, should the attorney discuss her case, either verbally or in writing, with the mediator prior to the date of the mediation? Make a mistake when handling any one of these three issues, and you will lessen the likelihood of success at mediation.

This is true largely because employment law cases are almost always fraught with significant emotion that necessitates the exercise of more care by both the attorneys and the mediator in preparing for the mediation. Employment cases are unique, primarily because the parties to an employment case almost always have a history together. They may have worked together for years, socialized outside of the office and established friendships in the workplace. Thus, any perceived feeling of mistreatment in the workplace can cause the Plaintiff to experience extreme feelings of betrayal, anger and sadness. The presence of these intense emotions is typically not as significant of an issue in other types of cases. For instance, when attorneys mediate a personal injury case, chances are that their clients met for the first time when the accident occurred. Yes, their clients are likely displeased with the set of circumstances they find themselves dealing with, but there is no pre-existing relationship that must be sorted through. The existence of this pre-existing relationship, and sometimes friendship, almost always complicates the employment mediation.

This article will discuss the first of the three pre-mediation decisions to consider, with two additional articles to come in later weeks that will address the remaining two decisions that attorneys mediating an employment law matter must address.

Decision One: Who Should I Choose as my Mediator?

When choosing a mediator for an employment case, the attorney must give serious thought to both the personality and demeanor of his client. A Plaintiff involved in an employment law dispute is often very emotional and sometimes emotionally fragile, especially if termination of employment is a component of the case. The loss of a job is routinely cited as one of the top five life stressors, often listed ahead of the death of a loved one. So, the fact that emotions are high in a mediation involving these issues is not surprising. Knowing this, hiring a compassionate and very patient mediator is almost always advisable. While the mediator cannot get bogged down in the emotions of the Plaintiff, it is imperative that she be able to connect with the Plaintiff so that the mediator establishes trust with the Plaintiff. This trust will allow the mediator to help the Plaintiff work through the emotion and then negotiate a settlement that will work for both parties. Many times, much of what the Plaintiff needs in order to be “ready” to settle is the opportunity to tell her story and feel like someone genuinely cares about what she believes has happened to her, even if her beliefs are ultimately arguably misplaced. A patient and compassionate mediator can do just that. There can be no “fast forwarding” through this cathartic process if success at mediation is to become a reality. Patient and attentive listening by the mediator is essential.

On the opposite end of the spectrum from the emotional plaintiff is the hard-headed Defendant. Thus, hiring a mediator with experience in employment matters (and preferably defense experience) is wise. While the mediator is and should be neutral regardless of his or her past representations, it is helpful that a strong-minded Defendant feel that the mediator can truly understand his or her point of view. Sometimes just feeling there is some common ground between the mediator and the Defendant is sufficient to establish this trust. Unlike the Plaintiff, the corporate Defendant in an employment law matter often sees the issues in black and white. The corporate Defendant, while often emotional about the situation, tends to be less driven by that emotion and much more driven by dollars and cents. Thus, having a mediator who has represented businesses and understands their motives and goals can be very helpful.

In the end, having a mediator that genuinely listens to the parties is of critical import in employment law cases. Both parties are usually angry for varying reasons. A good mediator will work tirelessly to diffuse this emotion so that both sides can work together to engage in meaningful negotiations that are less clouded by the emotion. The emotions of both the Plaintiff and Defendant must be understood and acknowledged by the mediator, and then, when and to greatest extent possible, set aside to pave the way for compromise and settlement.

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