Recent Trends in the Mediation of Employment Law Disputes

  • 16 mars 2021
  • Barry Fisher

2020 was a remarkable year for employment law. Not only did we all work remotely but there some were highly significant court cases and legislative changes which had a great effect on employment law. Oh yeah, we also lived through another recession in which millions of people lost their jobs.

This paper just out a few of my own personal observations about how those events affected employment law mediations in 2020 and 2021.


1. ZOOM Mediations:

Last year at this time I thought that ZOOM was a car commercial. Now I spend 8 hours a day on it. There was a lot of scepticism about ZOOM in the beginning, both from a security and from an effectiveness viewpoint.

However, after a year of doing mediations exclusively on ZOOM (about 200) I can honestly say that doing a mediation on ZOOM is certainly as good as if not better than doing a face-to-face mediation in downtown Toronto.

These are my observations:

  1. Being a client in a mediation is a very stressful event. This stress is compounded if you have to travel and attend the mediation in a strange and often intimidating office. With ZOOM the Plaintiff can sit in his or her living room, patting the dog and drinking their own coffee. When lunch time comes, they go to their own kitchen. If they need a break, they can walk around their own backyard. Adding needless stress does not make decision making easier. Therefore, reducing stress makes for better decision making. This leads to more settlements.
  2. Defendants often show up at a face-to-face mediation with inadequate information. When I ask for a three-year bonus history the Defendant may have to call back to Mary at the office for that information. But Mary is at lunch or sick that day. Now we are trying to mediate with imperfect information. With ZOOM, the Defendant is often at their office and thus they can simply retrieve that information themselves.
  3. The cost savings are self-evident once you eliminate travel and room costs.
  4. A half day mediation in downtown Toronto is not a half day if one of the lawyers has to come in from Waterloo. That lawyer loses 4 hours of billable time just travelling.
  5. One of the largest problems in mediation is the reluctance of the Defendant to have the actual decision maker attend the mediation. Why would the VP in Texas in charge of a matter worth $35,000 fly to Toronto to attend a mediation? Instead, they send the Canadian HR Manager with no power. Well, now with ZOOM the VP from Texas can easily attend the mediation. In fact, during the downtimes, he or she can be doing other productive work.
  6. I can honestly say that if each participant has their own ZOOM screen, there is no loss of personal contact or ability to read body language. If, however several people are sharing the same camera, or a participant is outside camera range, then the ability of the mediator to engage or relate to the party is greatly reduced.