How to Win at Mediating Employment Law Claims

  • 17 novembre 2022
  • Stuart Rudner

I often write and speak about winning at mediation (it’s not an oxymoron), and as a mediator, I remain convinced that most counsel can do a much better job with their advocacy at mediation (also not an oxymoron). One of my mantras has become “help me to help you”; since I will be your advocate in the other room, make it as easy as possible for me to understand and explain your case in a compelling manner when I am speaking with the other side. That is how you win at mediation.

Preparing to win at mediation begins long before the hearing. It starts with choosing the right time to mediate, and the right mediator to help you. It then continues with properly understanding and assessing your case, identifying your strong arguments (and eliminating the rest) and gathering compelling evidence to support them. Deciding to “put all the evidence together if we don’t settle at mediation” means that you go into mediation without your best case; would you ever do that at trial? Of course not. But the reality is that very few employment disputes make it to trial, so in all likelihood, mediation will be your opportunity for advocacy; don’t waste it.

Scheduling Mediation and Pre-Mediation Production

I am a proponent of early mediation in most cases, but it is important to consider the nature of the case before deciding when to mediate. A case with serious factual issues, such as allegations of just cause or discrimination, may well require examinations for discovery before mediation can be productive. Sometimes, when mediation is scheduled before discoveries, we use the time strategically to resolve some issues, such as the notice period or post-termination compensation that would apply if just cause did not exist. We can then agree to adjourn the mediation and resume after discoveries; this is another point to remember: you can be creative with mediation.

At the very least, I would encourage counsel to exchange Affidavits of Documents prior to mediation. Before you can draft a kick-ass brief, you need to thoroughly understand your case. While that does involve some time and cost, it makes sense to assess the evidence you have and know what the other side has; if they have documents that hurt their case, they will have to produce them in their Affidavit of Documents but if that has not been done yet, they may hide them at mediation, which can prevent you from knowing all the strengths of your case and getting the best result you can.

Over the past few years, we have all grown quite accustomed to video meetings and video mediation. I don’t see any reason to go back, in most cases. I have found that if anything, video mediations result in a greater settlement rate. One of the reasons for this is that it’s easier to have the right people at the table; while in-house counsel may not be willing to travel for a wrongful dismissal mediation, they can easily participate in the entire process from their office.

Lastly, when booking, consider booking a full day. I know it is more common to book a half day for an Employment dispute, but the reality is that three hours is rarely enough time to discuss the case, negotiate a settlement, and document the terms. It is very frustrating when people have to leave when we are making progress, which can be avoided if everyone blocks the full day.