Tips for a successful mediation

By Stuart Rudner

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 blog post 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.

Take time to assess your BATNA

Common negotiation theory suggests every party consider their Best Alternative to a Negotiated Agreement (BATNA). In the context of mediation in litigation, not settling means the litigation will continue to trial.

So, parties must assess the strengths and weaknesses of their case and the likely result. Included within this assessment should be the time it will take to reach a conclusion, the costs — which include time, money and stress — and the risk and uncertainty. Employers should consider the opportunity cost of having management and staff time spent preparing for litigation, rather than pursuing what the organization is intended to pursue. If clients or customers will be needed as witnesses, the impact upon the relationship should also be considered.

Don't overestime the value of having your 'day in court'

I often hear people say that they want to go to court so they can explain to the judge how poorly they were treated, and that they want the judge to explain to the other side that they cannot get away with treating people that way.

But, in many cases that evidence will not come out, or at least not in the way that you think it might. For example, if the sole issue before the court is how much notice of termination a worker was entitled to, then all of her evidence regarding her devotion to the company, long hours, and how unfair it was that she were dismissed will be largely, if not entirely, irrelevant. A judge may well cut her off when she starts to talk about it. Similarly, if the employer has not taken the position that it had just cause for dismissal, the individual's poor performance or misconduct are irrelevant to the assessment of how much notice of dismissal she was entitled to, and may well be shut down by a judge that is focused upon the legal issues before her.

Come with authority to settle, and with flexibility

Recently, I have taken to warning both parties at the outset of mediation that, almost inevitably, we will have difficult conversations during the course of mediation, and I will end up recommending that the defendant pay more than they want to and that the plaintiff accept less than they want.

In most cases, both parties will have come to mediation with an amount, or a bottom line, in mind. And in most cases, that amount will be unrealistic. While mediation is generally touted as a likely way to resolve the dispute and end litigation, it is also usually the first time a neutral third party will be assessing the case to some degree. If the mediator offers her comments with respect to the strengths or weaknesses of a party's case, the parties should take those comments seriously and adjust their expectations as appropriate.

Furthermore, while they may want to settle the dispute for a certain amount, they have to assess their BATNA and then consider any potential resolution in comparison to it. While individual litigants will usually have the authority to do what they want, organizations that send one or two individuals should ensure those representatives have reasonable authority. It is a waste of everyone's time if the individual attending at mediation on behalf of an organization is told that they are allowed to agree to no more than $10,000 when any realistic assessment of the case would suggest that, if a settlement is going to be reached, it will be in the six figures.

Take advantage of the opportunity to settle – but don't feel pressured

This may sound somewhat contradictory. However, as I often advise my clients and the parties if I am the mediator, while it is possible to settle at any time, mediation provides a fantastic opportunity to do so. Outside of mediation, settlement discussions will take time while each lawyer discusses each offer with their client and then responds to the other lawyer. Simply conveying and responding to an offer can take weeks or months as everyone works around everyone else’s schedule.

Conversely, at mediation, the parties and their lawyers are all together, for at least a few hours, focused on the particular case. Offers and counteroffers can be made quickly and efficiently, and if an agreement is reached, it can and should be documented immediately. This helps to avoid the situation which often occurs outside of mediation where the parties notionally agree on a resolution, but then take weeks or months to finalize the details.

If a resolution is reached at mediation, it is always advisable to document all the terms and conditions and have the parties sign off, so that there is no ambiguity and no opportunity for someone to have second thoughts and change their mind. It is an opportunity for the parties to settle that should not be taken lightly.

At the same time, settlement discussions can quickly develop momentum at mediation, and sometimes, a party will feel as though they "have" to settle. While parties should listen to the advice of their lawyers, and to the recommendations of the mediator, they should not be forced into accepting a settlement they are not comfortable with.

Just because a matter does not settle at mediation, does not mean that it will not settle at another time. In many cases, settlement will take place within weeks of the mediation. For the reasons discussed above, the negotiations may be less efficient outside of mediation, but that is no reason to accept a deal that you are uncomfortable with.