When is your employment law case most likely to settle in mediation? An old adage says there are two sides to every argument. It is never more true than in employment-related matters. So, the initial question is not about demonstrating a winning set of facts or an irrefutable legal argument. The question is about timing and perspective.
- Have the parties exchanged sufficient discovery so that the pertinent facts are all known? Mediation is less effective if there are unanswered questions involving wages, benefits, witnesses, and other important facts.
- Have the parties filed dispositive motions or motions to add parties? Has the trial court decided these motions? Pending rulings on dispositive motions create expectations of future success that can seriously damage the parties' willingness to compromise and avoid risks that a successful mediation can bring. We are always prejudiced in favor of our positions. It is usually more effective to get such motions behind you before settlement negotiations can be fruitful.
- How much more litigation expenses do the parties expect to incur? A healthy tension exists between conducting initial discovery to determine the issues and conducting final preparations to be ready for trial. A good time to come to the mediation table is before the costs have peaked. By then, parties may not have become entrenched in their positions, an added advantage for negotiations.
- Is the case just about money or are there ongoing relationships that can be preserved, or at least salvaged? Mending or terminating ongoing relationships can be a non-monetary incentive in favor of settlement. In that case, mediation may work better earlier in the process than later.
An obstacle to fruitful negotiations is created by the party who thinks he or she must hold certain matters as a secret throughout the negotiating process. He or she refuses to let even the mediator know. While this can be an effective strategy in litigation, it is deadly to the candid and good faith conversations necessary to a mediated settlement. Mediation works when you are ready to settle. It does not work if the motivation is to seek a litigation advantage or to exact punishment.
Mediation often should begin with discussion that any preconceived limits the parties have placed on the process should be abandoned. However, few participants are ready to accept that they may be able to learn something from the other side. The jury or the judge will see the other side; you might as well see it too. Be ready to learn something new, and be open to another perspective.
Mediation has arrived as a valuable tool in saving money and human emotions in employment litigation. Each case is unique, and timing and perspective can make all the difference. Give it a chance, and let the mediation process work for you.
About the author: Gregory D. Jordan
Greg Jordan is certified by the Tennessee Supreme Court as a Rule 31 General Civil and Family Law mediator. He has significant experience mediating cases involving employment law, contract disputes, and personal injury. As well, he has 25 years of experience representing employers in the areas of workers’ compensation and employment law in the Tennessee Supreme Court and the United States District Court for both Western and Middle Districts in Tennessee. He also has served as an adjunct professor of Business Law and Business Ethics at Union University. Jordan is a member and Group Leader of RKRB’s Employment Law Practice Group.
For additional information on this Employment article, please contact:
Gregory Jordan
(731) 423-2414
[email protected]
Source: Rainey, Kizer, Reviere & Bell, P.L.C.
https://raineykizer.com
