Mediation is advocacy. For most employment lawyers, mediation will be a far more common experience than trial. For most disputes, mediation is not a step on the road to trial—it is the main event. As a result, it is critical that lawyers prepare properly for mediation and take advantage of the opportunity. The goal is not just to settle but to achieve the best possible resolution for their client.
Stuart has written and spoken extensively on “winning at mediation”, which in his view is not an oxymoron. To prepare this article, Alix, a litigator with Rudner Law, comprised some questions that lawyers/litigators would like to hear a mediator answer. Below is our Q&A (which did not actually take place in a bar):
- Mediation has a high rate of success for employment law cases, despite that there is nothing forcing the parties to reach a settlement, and there is no real obligation on the parties to make compromises. What are some aspects of the mediation process that you believe makes it well suited for reaching settlements?
The statistics confirm that mediation is tremendously effective. Although as you point out, you can’t force someone to settle, even if mediation is mandatory, the reality is that most cases do. Unlike disjointed back-and-forth negotiations, mediation brings all parties together (physically or virtually) with the active guidance of a mediator.
The success of mediation is also tied to preparation. Parties arrive ready to engage, with a mindset to resolve. A skilled mediator enhances this by tailoring their approach to the dynamics of the case, making mediator selection critical.
While not true in every case, most parties are ready to settle as long as the terms are reasonable. Everyone’s definition of “reasonable” will be quite different at the start of the hearing, which is where a good mediator comes in.
- In recent years it has become much more common for mediations to take place by video conference, rather than in-person. Do you believe that remote mediations are just as effective, or is anything lost by not having the parties in the same physical location?
Yes, and in some ways, they’re more effective. Virtual mediations allow decision-makers to attend more easily and put plaintiffs in a more comfortable, less intimidating setting. This reduces logistical barriers and stress, facilitating constructive dialogue. Video mediations also offer flexibility, such as pausing for personal obligations and resuming later. While body language may be harder to read on-screen, clear facial visibility more than makes up for it.
- There is also a wide range of styles in the written mediation briefs that lawyers submit before mediation. Some lawyers will simply list the issues and attach key documents. Some lawyers will essentially restate the allegations contained in their pleading. Others will prepare more detailed briefs in order to “put their cards on the table”. What do you think makes an effective mediation brief, and what tips would you give to lawyers on preparing them?
I have discussed mediation briefs at length elsewhere but some of the key points are:
- “Spoon-feed” your mediator. The brief is your first chance to convey the strength of your case and get the mediator thinking your way, so draft it to be clear, concise, and convincing;
- Draft them to be clear, concise, and compelling;
- Provide all the information needed to understand your case and advocate for it;
- Focus on strong, evidence-backed arguments and avoid weak points that dilute credibility.
- Organize key details upfront (e.g., put all notice factors in a summary chart at the top);
- Use storytelling techniques to frame your position persuasively.
- Include a negotiation history and realistic litigation cost estimates to contextualize settlement options. After all, the best reason to settle is if it beats the alternative, which is proceeding with litigation. So make it easy to compare the two options - that will help everyone assess whether a potential settlement is reasonable;
- Don’t simply copy and paste from your pleading;
- Use technology - embed photos, videos, recordings and documents, or link to them.
- Before mediation, clients usually want to know what amount they should aim to settle for. To what extent should parties come to meditation with a “bottom line” or “top line” offer, and to what extent should the parties be prepared to change their positions based on what occurs at mediation?
Pre-mediation discussions between lawyers and clients are essential to set realistic expectations. However, flexibility is equally important. A mediator’s expertise may reveal new perspectives, so parties should be prepared to adjust their positions. Clinging to a rigid bottom line undermines the opportunity to achieve a resolution. One of the benefits that mediation provides, if you use a good mediator that is a subject matter expert, is that they can provide insights into the case that may not have already been discussed. If you refuse to adjust your position based upon what the mediator has to say, you have wasted an opportunity.
- I have attended many mediations in which several hours go by before either party makes a realistic offer. It can take even longer before the parties are negotiating in the same ballpark. What advice can you give lawyers to try to make negotiations go quicker and smoother at mediation?
That is an unfortunate reality. In many cases, counsel default to a half-day mediation (three hours), which may or may not be realistic. The time can be used more effectively if counsel
- provide concise briefs in advance which focus on the real issues (as opposed to raising issues such as bad faith or failure to mitigate without any factual basis) and clearly explain their position while backing it up with evidence (as opposed to taking the approach that they will “produce evidence if the matter doesn’t settle”);
- Prepare clients to engage constructively and understand practical considerations, like Employment Insurance repayment;
- Avoid extreme opening offers, which can sour or lengthen negotiations;
- Collaborate with the mediator, sharing insights about difficult clients or hidden issues that need attention;
- Accelerate the process by making meaningful moves early on instead of engaging in incremental, unproductive movement.
Parties can also expedite the process by “cutting to the chase” - I don’t mean they should offer their bottom line right away, but starting at $10k and moving $5k at a time when they know the case is worth between $250k and $300k extends the mediation for no good reason. As I often say, we are either going to reach a deal or we are not; whether you get to your bottom line in round 3 or 30 won’t change that.
Conclusion
Mediation is a powerful tool for resolving employment disputes when approached strategically. By investing in preparation, choosing the right mediator, drafting a compelling brief, supporting positions with evidence and engaging in constructive dialogue, lawyers and clients can achieve a good outcome. Mediation is advocacy; instead of just settling at mediation, counsel should put themselves in a position to get the best result for their clients.
About the authors
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.
Alex Minkin is an associate with Rudner Law where he practises as a litigator. He regularly writes about employment law topics that affect both employers and employees.
Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.