Reflections on Employment Mediation

Michael Loeb is a San Francisco-based JAMS mediator and arbitrator, exclusively handling employment disputes nationwide, including wage and hour class actions.  He was an employment litigator for 31 years and has mediated employment cases for 20 years.  He can be reached at mloeb@jamsadr.com.

When to Mediate

Early mediation is not a panacea.  Some cases require discovery before they are ready for mediation.  The major reason why early mediations fail is that the parties have had little chance to discover key documents or take essential depositions, and lack the ability to realistically evaluate the case. The chance of success at an early mediation can often be enhanced by each side’s agreement to take limited discovery before the mediation.

Selecting the Right Mediator

Employment lawyers tend to favor mediators with significant substantive knowledge of employment law. Mediators should have strong process skills as well as the ability to evaluate strengths and weaknesses through in-depth knowledge of employment law.  Vet mediators by obtaining information from colleagues.  Mediators should be willing to discuss their mediation styles and kinds of cases they have handled.  Consider who will be effective in overcoming likely obstacles to settlement.  The most important qualification is that a mediator be tenacious and resourceful.

The Pre-mediation Telephone Conference

Mediations should be orchestrated in advance.  A proactive, managerial mediator should begin the mediation process with a pre-mediation telephone conference with all counsel or discussions with each lawyer separately.  An important subject is who should attend, i.e. attendance of the claims adjuster, in person or by telephone, should be addressed ahead of time.

The contents and exchange of mediation briefs should also be discussed, as well as whether to hold a substantive joint session or a “meet and greet” joint session, if any.  The parties must effectively communicate their positions in a way to maximize the likelihood that each side understands benefits of settling and risks of litigating. The mediator’s goal should be to devise the best way of doing this.

Conduct of the Mediation

Opening session permits the mediator to set the right tone.  Discuss and plan what can be accomplished that is positive during the opening session.  Consider whether the settlement “pie” can be expanded beyond money.  In a stalemate, the mediator can make a bracketing proposal — if the employer goes up to “x” and the plaintiff comes down to “y,” which should be significant movements for both parties — to break the stalemate.

It’s not over until it’s Over

Many cases settle after the day of the initial mediation session.  The mediator should persevere and suggest a plan that will permit parties to continue their negotiations.  The mediator can suggest a cooling-off period with time for further consideration of information.

It is the role of experienced employment mediators to customize the mediation of each case to enhance its chance of settling.