The Case for Early Mediation in Employment Cases
The Best Time to Mediate Is Prior to Employment Termination.
Traditionally, parties enter mediation after discovery and close to the deadline established by the court. This works for many parties and most cases do eventually resolve. But such resolution follows the great expense and anguish that employment litigation engenders. Conflict resolution before employment ends can lead to superior results; especially where relationships between management and employees or between employees are tense. In many workplaces ignoring conflict allows it to turn into a dumpster fire over miscommunication or lack of understanding. By resolving disputes before things go south, and someone is fired, employers: (a) provide a means to salvage employment relationships and keep productive workers in place where there is a reasonable way of doing so; (b) save money; and (c) preserve administrative sanity.
Clients may be reluctant to involve mediators at such an early stage hoping the problem will just go away. This is wishful thinking. Resolving a dispute before it deteriorates into litigation should be seen as the win and savings that it is.
It is Still Not too Late to Mediate after a Charge of Discrimination or Lawsuit Has Begun
Even after a claim is filed, the prudent employer should consider mediation before moving in the heavy artillery. Clients who are accused of egregious, illegal and discriminatory behavior may understandably be reluctant to engage in any discussion. The same may be true for clients who feel they are the victim of discrimination. In those situations, the parties need to understand that the goal is to make peace-not friends. Even if the effort fails, the mediation process itself can help narrow issues, promote understanding of the other party’s motivation and establish some semblance of good will. If the parties act in good faith, there is very little to lose and much to gain.
The Tail That Wags the Dog
There is another reason to mediate employment disputes early. Most of the statutes upon which claims are brought shift fees and an employer that loses at trial will have the thrill of paying (1) what the finder of fact says they owe, (2) the fees to their own counsel and (3) as a special added bonus, the fees of opposing counsel. When parties wait to mediate until the court set deadline and after dispositive motions have filed, the fees accrued on both sides can be an impediment to resolution.
Engaging in early mediation permits employers to settle merited claims without the need to account for attorneys’ fees that may, by the time of trial, far exceed the value of the case itself.
While there are certainly some y employment cases that aren’t appropriate for early mediation, considering pre-deadline mediation may save clients from years of litigation angst. Parties should carefully consider mediation at the earliest opportunity.
Note: I stopped practicing law at the end of 2020 and am no longer a member of the New Hampshire or Maine bars. For the 35 years that I did practice law, I was a management-side lawyer and so that background informs my perspective. I am now a dispute resolution professional with PRISM/Hess Gehris Solutions where I mediate and arbitrate full-time with an emphasis on employment related disputes.