Mediation has proven to be a very successful way for parties to resolve employment and workers’ compensation disputes for a variety of reasons, not the least of which is getting the parties together at a designated place and time to work towards a resolution. Mediation is a relatively inexpensive way to get the unbiased opinion of another lawyer with experience litigating claims with similar issues, and for them to call on their experience to give opinions regarding the strengths and weaknesses of each side of the case. After taking part in hundreds of mediations, I have learned some practice tips that I feel will increase the likelihood of success in employment and workers’ compensation disputes:
(1) Some cases are not ripe for mediation too early in the process. Fact-specific cases and those that present dispositive legal issues are some cases that are difficult to mediate early. In the fact-specific case, if depositions and other discovery have not been conducted, the parties tend to spend significant time arguing and speculating about the testimony of the witnesses as it relates to the strengths and weaknesses of the case. This posturing takes away from the mediation process and distracts from the end goal of reaching an amicable resolution. Similarly, cases with dispositive legal issues are difficult to mediate as the lawyers tend to get entrenched in their own legal arguments and are often unable to have an open mind regarding the other lawyer’s arguments. Early mediation works best in those cases where the facts are essentially undisputed and the focus is simply on the amount of money it will take to resolve the issues;
(2) The mediation submission is important. In addition to informing the mediator what the case is about and the issues at hand, it allows each side to be open with the mediator and acknowledge the weaknesses of their case. The mediation submissions are confidential, so there is no harm in disclosing to the mediator the potentially negative aspects of your case. Additionally, in many cases, there are extraneous issues involved (i.e. financial difficulties of a party), and while they may have no real legal significance as it relates to the strengths or weaknesses of the case, they are nonetheless important to one side or the other when considering settlement. It is helpful to the mediator to be made aware of these issues in advance of the mediation, and to let the mediator know of any issues relating to client control or a client with unreasonable expectations. If addressing these issues in writing is not something with which you are comfortable, they can be discussed verbally with the mediator prior to the mediation and need not be in the mediation statement. There is nothing wrong with visiting with the mediator in advance;
(3) Client and lawyer expectations are, hands down, the biggest impediment to a successful mediation. A client (or lawyer) with unrealistic expectations will make for unnecessary tension and a difficult day for all parties involved. Expectations coming into mediation are seldom met going out. Both the client and the lawyer need to be aware of this fact;
(4) Becoming entrenched in positional negotiation is generally not helpful. While a mediator will address the respective positions of both sides, it is not the role of the mediator to wave a magic wand and make one side or the other give up;
(5) Finally, to the extent that an individual with authority can be convinced to personally attend the mediation, the more likely it is that the case will get resolved. While that is not always easy to do with out-of-state clients and insurance companies, time and time again it has proven to be very beneficial. Far too often, the mediation comes to a stand-still as one party is spending significant time trying to reach the representative who is supposedly “available by phone.” To the extent that this can be avoided, understand that doing so will increase the likelihood of getting your case resolved. As many of you know, there are many things that occur during mediation that are difficult to explain to someone over the telephone.
While this list is certainly not exhaustive, it identifies some of the main issues I come across while mediating. Although the issues involved in a case may be hotly disputed, going to the mediation with an open mind in an effort to resolve the issues will go a long way and serve your client well.