Considering the ever-increasing costs of litigation and that most employment disputes are either dismissed or settled before ever going to trial, counsel should give serious consideration to early mediation for these matters. Lawyers are, by nature and training, tenacious advocates for their clients and, therefore, are reluctant to suggest to opposing counsel an alternative resolution to litigation. There is no inconsistency, however, between zealous advocacy of the position of the client and seeking an alternative resolution to the matter which avoids the prohibitive costs of litigation and also provides the parties with certainty of outcome.
1. Cost Saving -
The costs involved in prosecuting and defending an employment-related dispute are prohibitive and, in many cases, exceed the amount that the plaintiff would be willing to settle for prior to trial. Even in advance of a trial, both sides will likely spend signifi cant amounts on discovery and other pre-trial expenses; costs they will only recover if 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. This would ideally be prior to the charge being fi led with the Equal Employment Opportunity Commission (EEOC) or state agency, but at least after conciliation efforts, if any, failed and/or a notifi cation of right to sue letter issued Even after a case has been fi led 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.
Originally published in Corporate Counsel on August 22, 2014.
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