September 2012 Bar Bulletin
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September 2012 Bar Bulletin

Reflections on Employment Mediation

By Michael J. Loeb


Mediation has become an institutionalized part of litigation, particularly for employment disputes. The question is no longer whether to mediate, but when, with whom, and how to achieve the best result. Institutionalized mediation, however, has profoundly changed mediation, particularly when mandated early in litigation.

This article will identify the bottlenecks to successful mediation and how to avoid them. Perhaps the biggest change - one which mediators and litigants should anticipate - is that mediations often require multiple sessions or significant follow-up. Under­standing this phenomenon is crucial, or the parties (and mediator) may give up on what will ultimately be a successful process, resulting in increased acrimony and litigation costs.

When to Mediate

Early mediation is not a panacea. Some cases, especially wage-and-hour class actions, require discovery before they are ready for mediation. Many cases benefit from pre-lawsuit mediation. These include those with a highly developed factual record, such as when the parties have exchanged detailed information regarding an administrative complaint of employment discrimination.

Pre-suit mediation may also be productive following an in-depth internal investigation of a claim of sexual harassment or employment misconduct, when a detailed report will be provided to the former employee. Written employment contract claims, particularly those with arbitration clauses, are also well-suited to early mediation.

The major reason why early mediations fail is that the parties have had little chance to discover key documents or take essential depositions, and lack the ability to realistically evaluate the case. The chance of success at an early mediation can often be enhanced by each side's agreement to take limited discovery before the mediation. An agreement that permits each side to propound one set of requests for production and take one day of the plaintiff's deposition and that of the key defense witness (waiving the one-day deposition rule) is an efficient way to evaluate the opponent's case before mediation.

An employer may believe that a dispositive motion can dramatically reduce the settlement value of the case. This may be a significant factor dictating the time for the mediation. Thus, mediation briefs that explore the strengths and weaknesses of a motion to dismiss on grounds such as the statute of limitation, failure to exhaust administrative remedies, preemption or the inability to prove a material element of a claim (for example, no protected complaint in a retaliation case) can promote a successful mediation.

Selecting the Right Mediator

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