As an employment attorney and mediator, I believe mediation is a good alternative to protracted employment litigation. Below are the top reasons why.
1. Mediation is a Voluntary Process.
Unlike litigation in which federal and state laws and court rules mandate the process (and often the outcome), mediation is a voluntary process. Thus, the parties choose to freely participate and are in control of – if and how – their dispute will be resolved.
2. There is No Adjudicator to Determine Fault or Liability.
Mediation is about resolving disputes on terms the parties agree to. Neither party admits fault or liability, nor is there a judge or jury who determines fault or liability.
3. Mediation Saves Money.
Employment cases can go on for years and even if the case is ultimately settled before trial, the parties will spend a significant amount of money on discovery, motion practice, and pre-trial expenses. This money will likely never be recovered by the employer and will only be recovered by the employee if he/she prevails. Alternatively, the cost of mediation is usually very reasonable; often a mere fraction of the costs of litigation.
4. Mediation is Efficient and Saves Time.
Courts are impacted and trial dates are usually set out years into the future. As such, parties will spend many years fighting their case before they ever get before a jury. On the other hand, mediation can be scheduled at any time pre or post litigation and, when successful, can literally put the dispute to rest as soon as a settlement is reached and the mediation is concluded.
5. Mediation is Confidential.
Civil lawsuits filed in federal and state courts are public record and, if a trial is ultimately held, it too will most likely be open to the public. However mediation is confidential and the information disclosed by the parties during mediation and any settlement reached, will not be made part of a public record.
6. Mediation Allows for Candid Communication.
Because mediation is confidential and is held for the purpose of trying to reach a mutually acceptable resolution, the parties can openly discuss their views about the dispute. They can also freely share their concerns (e.g. weaknesses) about their positions [in confidence with the mediator] without fear of making an admission against their interests.
7. Mediation Allows for Creative Problem Solving.
Unlike a civil lawsuit where a judge or jury may be limited by applicable law in the types of remedies they can award a prevailing party, mediation allows the parties to engage in creative problem-solving so that they can structure unique settlement terms that may never be possible in court.
8. Mediation Can Help Employers Avoid the Possibility of Paying the Employee’s Attorneys’ Fees.
In most federal and state employment law statutes, a prevailing party (but more often a prevailing plaintiff/employee) is entitled to reasonable attorneys’ fees. Often the prevailing employee’s attorneys’ fees far exceed the monetary award received by the employee. By submitting the dispute to mediation – earlier rather than later – employers can reduce the risk and uncertainty associated with these fees.
9. Mediation is Final – No Appeals.
Unlike a jury verdict after trial which is subject to appeal and a further expenditure of time and resources, a settlement at mediation is final.