Mediation can be a very useful tool in resolving employment discrimination cases without going to trial. Mediation can take place at virtually any time before the jury returns a verdict. In order to determine when it is best to attempt mediation, there are several factors that should be considered.
Mediation before the Lawsuit is Filed
The best situation would obviously be to settle the case before the lawsuit is filed, that is, before a lot of money has been spent. However, the only way you can practically settle a case this early in litigation is if you have sufficient information to evaluate what a reasonable settlement would be. Typically, this would require at least some amount of discovery, including the exchange of statements from witnesses and relevant documents.
Mediation after the Lawsuit is Filed
It is more common for mediation to occur, and be successful, after the lawsuit has been filed. When a significant amount of discovery has been conducted, the parties are typically in a better position to determine the value of the case, and consider any weaknesses in their legal positions. When there are pending motions that may result in the dismissal of particular claims, or the case as a whole, parties may be more predisposed to settlement, depending on the strength of their respective positions.
How to Attempt Mediation Successfully
There are certain ground rules that should be agreed upon before mediation begins. These preliminary issues include deciding who will pay the costs of mediation, when and where the mediation will take place, and whether or not mediation briefs will be submitted. Agreeing on, at least, these few ground rules will help the mediation move along more smoothly.
Who Pays for the Mediation?
Most private mediators required either a deposit or the full mediation fee prior to the scheduled date. It is also common for the mediation costs to be figured into the settlement amount, even if not separately agreed upon. Both parties can agree to divide the costs of mediation equally, or they may agree to certain percentages. In some cases, the employer may agree to pay the entire fee, contingent on a settlement actually being reached. If unsuccessful, the parties then pay the fee equally.
When and Where to Hold the Mediation
It is customary to set aside at least one entire business day for mediation. However, some mediators believe that having a specific deadline will encourage everyone to focus on settlement more quickly. Regardless, mediation takes time, especially when it is successful. While the location is not extremely important, it is often true that the employee feels much less comfortable (psychologically) participating in mediation on the company premises.
Mediation Briefs Can be Helpful in Some Cases
The most important thing is to adequately inform the mediator as to the legal and factual issues of the case, from both sides. Otherwise, the mediator will be ill-prepared to assist the parties in arriving at reasonable expectations about settlement. Most often, the existing pleadings or briefs will be sufficient to accomplish this. Your employment discrimination attorney will guide you through the entire mediation process.
If you feel you have been the victim of discrimination, or if you have any questions regarding your employment rights, please contact the experienced employment attorneys at Michel Allen & Sinor , either online or by calling us at (205) 265-1880.