The pathways to resolving employment disputes are evolving. Litigation, once the preferred method of resolving employment disputes, now faces scrutiny under the weight of practical considerations. Questions abound regarding its efficacy: How long will it take, and at what cost? How will the fact-finder navigate the complexities of the case? Does the adversarial system serve as a pathway to determining the truth or is it merely a means to win?
Further, as trial outcomes are notoriously unpredictable, even in the most favorable circumstances, there's growing recognition that litigation's focus on optics may overshadow genuine problem resolution. Jurors often give greater weight to likability than truthfulness during trials, and there are limits to the remedies available through litigation, which can leave parties dissatisfied.
In other words, many practitioners are adopting the position that litigation falls short of its promise of delivering justice. Jury trials are becoming increasingly rare with mediation emerging as a preferred method of resolving cases.
Regardless of whether you choose to litigate or mediate a case, efficiency is paramount. Many employment cases settle, and the decision of when to engage in settlement discussions can significantly impact outcomes. As such, you should evaluate the pros and cons of settling a case before discovery, during trial, or even during appeal.
It is important to determine a settlement discussion strategy as well. Key considerations include determining what information to present, how to present it effectively, and whether to initiate with a demand or an offer. Additionally, understanding how to assess and adjust demands and offers based on available information is crucial. Timing plays a significant role as well, and it is important to consider when to introduce proposals, respond to offers, or leverage new information to your advantage. Delaying settlement discussions may be a tactic to buy time for further negotiation or to await more favorable conditions.
If you decide to mediate employment law cases, it is important to adopt strategies that help you make the most of the process. Mediation allows you to leverage the mediator's role as a facilitator and encourage them to help the opposing parties to understand your viewpoint. Before mediating a case, though, it is essential to thoroughly assess liabilities, set client expectations, and evaluate damages as well. This includes quantifying loss of earnings, both past and future, and considering mitigation efforts, as well as emotional distress, attorneys' fees, and punitive damages.
The valuation of the case will likely evolve during mediation, as the mediator evaluates the credibility and likability of the plaintiff, defendant, and witnesses. This assessment considers the presentation of new information regarding liability and damages, prompting parties to readjust their expectations accordingly.
However, it’s important to remember that for many parties in employment law disputes, it is not just about monetary compensation, as their work and careers are often sources of identity and pride. Factors to consider beyond financial compensation include confidentiality and publicity agreements outlining what can be disclosed by the employee and enforcement mechanisms. Parties may find it important to negotiate the costs of defense and the extent of no rehire/separation agreements, extending to all affiliates and subsequent acquisitions, and continuing company benefits such as health coverage, bridging to Medicare, and company perks as well. Additionally, they may consider employing non-disparagement and reference provisions to regulate information provided to prospective employers, potentially converting termination to resignation.
There is a distinction between fielding parties’ concerns and merely letting them vent, which may be counterproductive. As such, it is crucial to retain a mediator with emotional intelligence, who can facilitate understanding of why parties feel a certain way and assess whether emotions cloud judgment or comprehension of the case. In many instances, short, frequent conversations between the mediator and parties allow the mediator to build credibility and trust more effectively than lengthy discussions, while delving into the parties' true desires and exploring actionable steps. When mediators genuinely engage with parties it often yields valuable insights, as parties are more likely to share personal stories that illuminate the case's nuances.
Proactive engagement with the mediator is essential to maximize the effectiveness of mediation. This involves discussing their style and process beforehand, sharing comprehensive case information, both favorable and unfavorable, and seeking their input as a sounding board for positions and strategies. It's also important to encourage mediators to propose solutions and serve as intermediaries between rooms to enhance negotiation dynamics. Additionally, mediators should mirror your position, including critical terms like taxes or confidentiality. Mediation can be a lengthy process, and persistence is key, meaning you should ensure that your mediator remains committed to finding a resolution.
Embracing mediation as a primary means of dispute resolution requires strategic foresight and adaptability.
This article is based on materials presented by Andrew M. Dansicker, Esq., Darryl G. McCallum, Esq., and Jeff Trueman, Esq., during the session Maximizing Mediation: Effective Strategies to Get the Most Out of Mediation, at the 2024 MSBA Employment Law Institute. To learn more about how you can maximize the potential of mediation, you can access the session here.