Mr. Smith has many years of experience as a civil mediator, helping parties reach resolutions out of court. He uses over 30 years of experience as a litigator in the areas of employment and business litigation to help the parties find creative solutions to their conflicts, saving them the expense and headache of going to court.
Advantages of Early Mediation
Litigation is expensive, and most business and employment disputes are dismissed or settled before going to trial, so much of the expense is incurred just to get some minor positional advantage.
In employment litigation, or in business litigation where a contract giving fees to the winner is involved, the ultimate cost of settlement almost always rises when a party comes out of the gate “litigating” every fact.
You should give serious thought to early mediation for these matters. Here are five reasons why mediation makes sense in employment litigation. Many of these points also apply to other litigation.
- Choice of Mediator. Mediation allows counsel to choose a mediator with substantive knowledge of employment law. An experienced employment mediator can listen to each side’s concerns and empathize with their situation and give feedback to both parties regarding potential challenges regarding their case. Those challenges may relate to legal pitfalls, the stress and potential embarrassment that may be associated with protracted litigation, and the cost and time involved with this type of legal dispute. Experienced counsel is familiar with a number of mediators and can pick one with the knowledge and personality that fits your dispute. Mr. Smith has mediated a case like yours.
- Cost Savings. The costs involved in prosecuting and defending an employment-related dispute are prohibitive and typically exceed the amount the plaintiff would be willing to settle for prior to trial. Even in advance of a trial, both sides will likely spend significant amounts on discovery and other pre-trial expenses; costs they only recover if they win. Employers almost never recover any part of these costs, even when they “win.” These costs could likely have been avoided had the parties agreed to mediate the matter with a neutral third party at an earlier stage. Even after a case has been filed in court, the parties still should avail themselves of every opportunity to seek mediation, considering the looming costs of going forward and the uncertain outcome. In Fresno County, and in many others, all civil cases are required to participate in an ADR process. Early mediation is the best way to satisfy this requirement.
- Flexibility. One of the greatest benefits of mediation is the flexibility of the process. Each case is different and mediation allows the attorneys and mediator to customize the process. Some believe mediations are most productive when the parties spend a lot of time in joint session expressing their feelings. Other attorneys believe that any direct conflict during the course of a joint session is harmful to the overall process. In a case where an employee feels threatened by the employer, it might be best to conduct mediation primarily or entirely in caucus. The mediator can get a good feel for this by talking to the attorneys prior to the mediation hearing date and can work with them to craft the right process.
- Confidentiality. For employers and employees, confidentiality is extremely important, particularly with respect to the terms of the settlement agreement. Whether or not the allegations of a complaint are true, it is often not in the best interests of the employer or the employee to allow them to be made public, nor is it always beneficial to have details of a settlement disclosed. If the case is litigated, everything will be a matter of public record, unless settlement terms are placed under seal, which depends on the individual judge. One of the conditions of mediation is that the process is confidential, and nothing may be disclosed or used by either party in any other proceeding.
- Speed. Typical employment litigation takes two years or more to complete through trial. Mediation can be finished in a few weeks. Both sides are better served by reaching resolution quickly, without wasting time and creating more risk.
These are just a few of the reasons why mediation makes sense for resolving employment disputes. Bringing a mediator to the table early in the process helps balance those interests and paves the way toward ending the dispute.