In my employment law mediation practice, I see the same dynamic play out more often than it should. Counsel arrives prepared, the client arrives wanting to settle, and then the other side's opening position lands or something is said in a joint session that feels unfair or one-sided, and the client reacts. Not strategically. Emotionally. That reaction, more than any other single factor, is what prevents or delays a negotiated resolution.
The solution starts with a frank pre-mediation conversation. Review the opposing brief with your client before the mediation date; walk them through the other side's arguments; explain what will likely be said; and prepare them for what the opening offer will feel like. But go further than the numbers – tell your client that they may hear things they strongly disagree with; hear positions that feel incomplete, unfair, or not grounded in the evidence; have to deal with difficult personalities; and tolerate arguments that seem unreasonable. If clients are not prepared for that experience in advance, they will likely interrupt, disengage, or take things personally. Clients who are ready will listen, take notes, and work through counsel. They may not agree with what they hear, but they are less likely to lose focus on the goal. That distinction often determines whether a file settles.
Evidence Is Not the Same as Truth
I tell every party the same thing: cases are decided on evidence, not on what actually happened. A judge does not know what happened, and no matter how often you say something, it remains an allegation unless you can offer proof. If your client has documentation, communications, or witnesses that support their position, that material should be in the brief or brought to the mediation. Telling the mediator, "I can get that later if the case doesn't settle" is not helpful. As a mediator, my job, in part, is to carry your strongest arguments into the other room, and I can only do that if you give me something to work with. If I go in with allegations and no supporting evidence, it will be significantly harder to advance your client's position.
Bald allegations, however sincerely held, are not persuasive. If a plaintiff claims the termination was discriminatory but has nothing beyond their own account, that claim is difficult to advance. If a defendant asserts just cause but has produced no supporting evidence, that argument will not move the needle. Bring the evidence or be realistic about what the case is actually worth without it.
Practical Issues Counsel Too Often Overlook
Several issues arise in employment mediations that counsel should address with clients well in advance, because working through them during the mediation wastes time that is often in short supply. Whether the employee received employment insurance benefits matters, because a settlement may trigger a repayment obligation and your client needs to understand that before evaluating any number. Tax treatment is equally important, since settlement funds in employment cases can often involve an allocation toward non-taxable damages; that can occur when there are allegations of human rights breaches or bad faith conduct, for example. Where appropriate, clients should obtain tax and financial planning advice before signing a settlement.
On the employer side, make sure someone with settlement authority is present. If that person requires internal approval before committing to a number, get those stakeholders engaged before the mediation, not during it. Scrambling to explain the background of an employment relationship in a hasty phone call mid-session is not a recipe for success.
Make Offers With Intent, and Use the Mediator
If your client's goal is to settle, their negotiating behaviour needs to reflect that. Avoid framing positions as "final" prematurely. I have seen mediations effectively freeze the moment a party declared a number final, and I have seen those same cases settle in the days that followed for that number or more. Framing a position too firmly too early shuts down dialogue and makes later movement harder than it needs to be, particularly because a significant number of employment matters continue to evolve and ultimately resolve after the mediation itself.
I also consistently see parties derail their own negotiations over the question of who has moved more. One side believes they have made significant concessions; the other sees movement from a position that was never realistic. Even though the numbers have changed, the gap does not feel like it is closing. Counsel's role in that moment is to redirect the conversation away from counting steps and toward evaluating how close the parties really are, and the prospects, if any, for a better outcome at trial.
Finally, do not underestimate the value of letting the mediator engage directly with your client rather than deferring to counsel for everything. Your client has first-hand knowledge of what happened, and that direct engagement gives the mediator far more to work with when they are in the other room. It also gives the mediator an opportunity to assess how your client will come across as a witness, which is information that can meaningfully affect how the mediation unfolds.
Mediation is not just about showing up with a number in mind. The parties who achieve the best outcomes are the ones whose counsel has done the work beforehand: preparing clients for the process, the evidence, the emotional experience, and the practical realities of settlement. The more prepared your client is when they walk in the door, the more effectively I can do my job on their behalf. Help me help you.
Please contact me if you have an upcoming matter I can help with or if you'd like to discuss my approach to mediation.
https://www.rudnerlaw.ca/alternative-dispute-resolution
416-864-8501
stuart@rudnerlaw.ca
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