Tips for a Successful Mediation

  • March 10, 2020
  • Stuart Rudner, Rudner Law

Employment lawyers don’t spend all their time in court or acting as counsel to employers and employees. We also enjoy the opportunity to take on the role of an objective third party whose goal is to assist in dispute resolution. This article contains a series of tips on how parties should approach mediation, written based upon my attendance at hundreds of mediation hearings as counsel for the employee, counsel for the employer and as mediator.

Focus on the Future, not the Past

Too many parties at mediation are focused on what the other party did that caused them to be in litigation. Employees continuously refer back to how poorly they were treated after devoting their lives to the organization, and employers often refer to the conduct of the employee and how it destroyed the employment relationship (particularly if there is an allegation of just cause). Whether or not any of that is true, I always remind the parties that they cannot change the past.

What’s done is done, and they need to move forward.

Let Reason, not Emotion, Rule

This point is closely tied with the first point above. It is understandable that some or all the parties will be quite upset or angry with the other side. That is often the case for the individual, but it is frequently true for the employer as well.

While many people think of employment-related disputes as a David and Goliath scenario, the reality is that, in Canada, the vast majority of employers are small businesses. Many of them are run by individuals or families and they take the issues and disputes that arise as personally as their employees. While it is perfectly understandable that some or all of the parties will be upset or angry, ultimately, a reasoned decision must be made with respect to their best course of action, and emotion will only interfere with that reason.