Mediating Employment Law Disputes: Be Candid, be Concise, and be Successful

  • November 15, 2024
  • Stuart Rudner

For mediation to be effective and efficient, it’s crucial to be candid and open with your mediator. As I always say, 'Help me to help you'. The best way to do this is to clearly present the key issues and your position, emphasizing your strongest points without burying them in weaker ones.

I have spent a lot of time mediating employment disputes, and based on that experience, I have written and spoken extensively on how to succeed at mediation; I’d be happy to share any of my previous articles or slide decks with you[1]. I don’t want to repeat myself here, so I’ll focus on one specific point in this article that will help you to be more successful when mediating employment law matters.

Be clear and Concise

I often hear from colleagues that mediations drag on for hours without even reaching the settlement discussion until well into the process. While there are many factors that contribute to this, one of the most common issues I’ve observed is that counsel often fails to clearly identify the key issues in the case. Instead, they take a scattergun approach, presenting everything they can think of and hoping something will resonate. This leads to inefficiency, forcing me, as the mediator, to navigate through the clutter distinguishing between the legitimate issues that should be addressed and the less relevant points that only serve to delay the process.

For example, as I review the briefs before mediation, I often encounter key allegations of just cause, failure to mitigate, human rights violations and bad faith. In many cases, it's not clear whether these issues are being actively pursued or are baseless, which can lead to unnecessary delays. Sometimes we get to mediation and counsel quickly tells me they are “not really pursuing ___”; it would be better to know that before I spend time digging through the brief to try to see if there is some basis for it, as well as asking about it during the mediation. By identifying the real issues upfront, we can streamline the process, allowing me to focus on the most relevant issues and avoid spending time on irrelevant ones.