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.
It’s Called a “Brief” For a Reason
I always recommend drafting briefs concisely, focusing only on the issues that are truly being pursued and proactively acknowledging weak points. However, I understand that some issues may need to be included for tactical reasons, particularly if a client insists on them. In those cases, you can include those issues in the brief but let your mediator know that they can be ignored.
Be Candid with Your Mediator
I try to schedule pre-mediation conferences which allow us to clarify procedural details and, most importantly, identify the key issues to the mediator before mediation starts. This ensures we can focus on what truly matters right from the start. However, it’s not always possible.
Sometimes, I use the brief moment when I bring people into the mediation, whether via Zoom or in person, to get a quick overview of the case. With lawyers I know well, it’s easy to ask if certain issues are genuine or to simply inquire about the real points of contention, the obstacles to settlement, or what I should focus on. That two-minute conversation can be invaluable, helping us save substantial time during the mediation. However, being so direct is not always possible with counsel I haven't worked with before.
If we don’t have a call scheduled, I encourage counsel to reach out to me before the mediation so we can discuss these issues. I also encourage counsel to be candid throughout the mediation process. It's not uncommon for me to speak with counsel privately, without their clients present. In the past, we'd have these discussions in the hallway; in video mediations, we can use a breakout room. If there are issues you don’t want your client to know you’re not fully pursuing, feel free to share them with me privately.
Be Candid with Your Client
Preparation is key; you should determine which points are strong, and the weak points you will have to address, before the mediation and not during it.
I'm a strong believer in speaking candidly with your client throughout the case in order to make sure they understand their position. In particular, you should meet with them before mediation in order to discuss the strengths and weaknesses of their position. I generally prefer to do this after both parties' briefs are finalized, although timing doesn’t always permit this.
Ultimately, this should not be a cheerleading session where everyone just praises the strength of the case. Instead, it’s essential for counsel to take an objective, realistic approach and help the client understand the weaknesses in their case.
There are always some weaknesses. It is also important to explain to them that, even though you may have taken certain positions for strategic reasons, they are not strong positions and you will not be genuinely pursuing them at mediation. Doing so will make it easier to have candid conversations with your mediator.
I can also help you with a stubborn client. If your client refuses to accept your advice and insists that certain positions are strong when they’re not, turn to your mediator for support. We can help explain to your client why those positions are weak, while reinforcing your key arguments and strengthening both your credibility and your case.
Pith & Substance
The bottom line is that whether we are talking about the written brief or the oral advocacy at mediation, counsel should make their points clearly and concisely. Again, I am your advocate in the other room. The more convincingly you present the strength of your position, the more effectively I can advocate for it with the other side. However, if you cloud the issue with unfounded allegations, your stronger points may get lost in the noise. Your mediator can become a powerful ally and help you achieve a positive outcome. That is one way to win at mediation.
About the Author
Stuart Rudner is an employment lawyer, mediator, arbitrator and managing partner of Rudner Law. He is a regular contributor of articles for the OBA Labour & Employment Law Section newsletter, and a frequent speaker on employment law topics.
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