Valerie Kiffin Lewis Law Firm

employment discrimination lawyer in Fort Lauderdale discrimination  Fort Lauderdale discrimination lawyer

mediator & arbitrator

10 Tips in Employment Mediation

                                                                                                                           by Valerie Kiffin Lewis, Esq.


   1. BE PREPARED


Nothing takes the place of preparation.  Your client will appreciate it, the mediator will appreciate it, and the results often makes the effort worthwhile.  Being prepared means knowing your case inside and out.  Being able to articulate your client's position and how you intend to prove your case at trial.  Being able to articulate your client's position and how you intend to prove your case at trial is part of making an effective presentation on behalf of your client.  Being prepared means that you have objective criteria to measure the appropriateness of your demand for damages.  Being prepared also means knowing your client- knowing your clients interests and desires.  What is your client willing to sacrifice?  What is your client adamant about getting as relief?  Preparation also means putting yourself in the other person's shoes and making an honest evaluation of the case and the likely outcome if the case was to be litigated.  Try to understand the concerns and interests of the other party.


  2.  BE REAL WITH YOUR CLIENT


Educate your client!  Don't let your client believe that his or her case is like the Texaco case or any other multi-million dollar case-when it is not.   Your client finding out for the first time that his or her million dollar case is pushing a $1,000.00 at mediation is no picnic.  Talk to your client about the potential risks of going forward.  Tell them about summary judgment motions - that they may never see a judge or a jury, especially if his or her case is in Federal Court.  This is important because many plaintiffs just want their day in court.  They are convinced that if the jury just heard their side of the story-they would win.  They do not know or understand that in an inordinate amount of employment cases never make it to trial.  Why? Because of summary judgment motions.  Often times an attorney will rely on the mediator to educate or prepare his or her client for consequences or risks in going forward.  These risks include the cost of litigation, your client's time, and sometimes the unfortunate reality that the only favorable witness in the case died last week.  Mediation should not be the first time your client hears that there may be significant problems with his or her case.  More importantly, that you do not intend on taking their case to trial!


  3.  COME TO MEDIATION WITH FULL AUTHORITY


What does it mean to have full authority?  It means you and your client can make a decision at the table that can resolve the dispute.  It means not having to rely on a third party who is not present at the mediation, and therefore, does not have the benefit of the exchange of valuable information that was disclosed during the mediation.  If you have to call someone ten times during the mediation or every time a counteroffer or offer is made-YOU DO NOT HAVE FULL AUTHORITY!  Recently, I represented a client at mediation and the opposing side (lawyer and client) had to go back to the home office for authority because they could not reach the person with authority via the telephone.  Luckily, the home office was just minutes away-but it showed that they came to mediation with limited authority to settle the case.


4.  GO TO MEDIATION IN GOOD FAITH


Do not come to mediation expecting to convince the other party of your position.  Of course you want to state your position, but if that is your sole intent for coming to mediation-then essentially you have wasted everyone's time.  When it is court-ordered you don't have much choice but to attend mediation-even if there is no money on the table.  But if that is the case - early in the process it is best if you just say so.  Otherwise, the other party is left frustrated and the mediator sits there wondering "Now why did you ask me here again?"  Although it is true that "good faith" does not necessarily mean that one is required to pay any monies at all, I find that being open and honest is both r conscientious and respectful of another's time.  If there is no money on the table-it is best that you just say so!


​5.   DO MEDIATION SUMMARIES


While it may take a little more time to prepare a mediation summary- it is worth its weight in GOLD!  You want the mediator to be familiar with the facts and issues of your particular case before you sit down to mediate.  Thus, you can feel somewhat secure that the mediator has a sound understanding of the facts and specific issues relevant to your case.  It also affords the mediator the opportunity to give consideration to other potential alternative resolutions prior to the mediation.


6.   ALTERNATIVE RELIEF


With regard to alternative relief, speak with your client about other alternatives in addition to or in lieu of monetary relief.  If they are unemployed do they want their job back?  Will your client accept a resignation in lieu of a termination?  Probe your client for suggestions as to how the dispute can be resolved to their satisfaction.  Think about options that might appeal to your client or options that might appeal to the other side.


7.  MAKE SURE EVERYONE IS AT THE TABLE THAT NEEDS TO BE AT THE TABLE


If you are representing the employer it is generally helpful to have the HR Manager and/or the employer's Operations Manager present at the mediation since those individuals will most likely have actual knowledge of the particular facts and issues involved in the case.  Personal appearance is preferred but most times telephone participation can be accommodated.  If the mediation is court-ordered, and its your client who cannot physically appear at the mediation, make sure that you get court approval to appear telephonically.


8.  DO TIMELY DISCOVERY


Do not wait until the last minute - as you approach discovery deadlines- to propound written discovery or to take necessary depositions in your case.  You owe it to your client to adequately prepare his or her case, which includes being ready at mediation to answer relevant and pertinent questions that you will need to answer if you have to try your case.  If you go to mediation and you do not have the necessary answers or information it may preclude or delay settlement possibilities.


9.  OPENING STATEMENT SHOULD NOT BE ADVERSARIAL

 

Sometimes it is hard for attorneys not to be adversarial.  I mean that is what they are paid to do-be zealous advocates and to fight for their clients.  However, that energy should be saved for the courtroom if litigation becomes necessary.  Mediation is a non-adversarial forum.  Do not start the mediation with name calling, or the use of accusatory language or tone.  It will do nothing to promote settlement or resolution and only serve to turn off the other side.  Your opening statement should be persuasive and inviting so that the other side understands your point of view and your interests and concerns.


10.  SELECT A MEDIATOR WITH KNOWLEDGE AND EXPERIENCE


One of the most important things you should do is to select a Mediator with knowledge and experience in the subject matter in dispute.  In the employment litigation arena it is difficult to be an effective mediator if you do not understand the substantive and procedural issues involved in employment litigation.  Recently, I was told by a colleague that the mediator was sent home and the attorneys and the parties stayed behind and settled the case themselves.  What is interesting about that is that the mediator is a well respected mediator but in a different practice area.  That particular mediator gets rave reviews in the employment arena-but this was a family law case.  Make sure that the mediator you select has the knowledge base and experience mediating the type of claim or case that you have.  It makes a world of difference!