Monday, April 2, 2012

Should I Mediate My Employment Law Case?

A commonly misunderstood aspect of litigation for people is alternative dispute resolution and mediation. In some cases, mediation is mandatory and court-ordered and in others it is merely optional and merely encouraged.  In employment law cases, mediation is usually optional and at the discretion of the parties.

What is Mediation?

Mediation is a tool of alternative dispute resolution where an unbiased, impartial third-party official, called a mediator, attempts to help parties resolve a case to avoid the cost, time and expense of a hearing or trial.  The goal of mediation is to get the parties to settle the matter and end litigation.  Therefore, mediation is a tool used sometimes early on in a claim in order to see if the matter may be resolved quickly and amicable and also helps parties early on realize the strengths and weaknesses of their cases and defenses.

The typical mediation takes place at the mediator's office where the parties to a lawsuit gather and every mediator proceeds in different manners and styles.  Some mediators will have all the parties start out together in the same room and then separate the parties to meet and discuss with them separately and some mediators separate the parties the entire time and go back and forth in an attempt to get the parties to settle.  Mediators pride themselves on their settlement success rate and the most successful mediators keep their appearance as unbiased and impartial to each party so as to not appear to be taking a side.

In meeting with each party, the mediator goes over the case and usually is given a "mediation report" which is a brief description of the lawsuit and claim(s) before the mediation.  This allows the mediator an opportunity to identify strengths and weaknesses in each party's claims and defenses to help the parties reach common ground to settle.

Mediation can vary in time from mere minutes to an entire day, depending on the progress and how close the parties are to settlement.  If settlement is reached, paperwork is filled out memorializing the agreement.  If mediation fails, the matter proceeds along through the system, on pace to hearing or trial.

ERD Mediation Program

In Wisconsin, for claims before the Equal Rights Division (ERD), a mediation program was created where complainants and respondents may mediate their claims almost immediately after a claim is filed.  The nice thing about the ERD's mediation program is that actual Administrative Law Judges who handle these cases on a weekly basis and see all types of claims are assigned as mediators (though they will not be the ALJ assigned if the matter proceeds to hearing).  Allowing current ALJs to serve as mediators means that the foremost opinions and suggestions will be proffered and parties can really learn and see the strengths and weaknesses in their claims under the Wisconsin Fair Employment Act (WFEA) through mediation.

Do I Need a Lawyer for Mediation

No, you don't "need" a lawyer for mediation but it is highly recommended to obtain a lawyer as soon as possible as an employment attorney is in a good position to inform you of what a reasonable settlement offer is as it is often difficult to know what amount of money to take as a settlement.  Many times I receive calls from individuals who have filed discrimination claims with the ERD and their expectation of what their case is worth and what they want to settle their case is incredibly unreasonable and above and beyond what the law provides for a remedy.  This hinders a case and only leads to a hearing that could have been avoided very early on.

Should I Opt for Mediation?

This is not an easy "yes or no" answer as every case is different and really just depends on each party's mentality of the case and the facts of the case.  Some parties are incredibly open-minded and easy to work with whereas other parties will be very stubborn and unwilling to budge on what they want to settle, assuming the other side will settle at all!  This is another reason it is best to obtain an attorney before the mediation process as mediation can be a waste of time if you unknowingly go in with either unrealistic expectations or the other side is completely unwilling to settle and this could have been found out beforehand.

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