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, Alex, 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.