Effective mediators are skilled at working through numerous challenges. But attorneys can help improve the odds of a mediation reaching a successful conclusion by avoiding the following five mistakes:
1. Being Unprepared.
Attorneys who do not adequately prepare, significantly increase the likelihood that a mediation will not succeed. This typically occurs when the the client is not educated in advance of the mediation on potential factual problems that impact liability or defense of the case; a detailed mediation brief that thoroughly sets out the relevant facts and support for any claims damages is not prepared; or counsel and the client do not have an understanding of what would be a reasonable settlement value for that particular case.
In a recent case, defense counsel did not have a firm grasp of the facts as established through a detailed email record. Counsel’s failure to properly understand what actually transpired and to educate their client on those facts, led their client to believe that the company’s HR team had acted in full compliance with the law when in actuality the evidence suggested the potential for a contrary finding. This led to the defense not properly evaluating their exposure and bringing insufficient monetary authority to settle the case—all of which could have been avoided if counsel had a better understanding of the evidence in advance of mediation and discussed this with their client.
Similarly, in another case, Plaintiff’s counsel did not take the requisite time in advance of the mediation to understand when his client actually tried to return to work following a medical leave. Plaintiff’s counsel, therefore, initially insisted that his client tried to return to work significantly earlier than actually occurred, which led to the defense room believing that the Plaintiff was being dishonest and resulted in a substantial gaps in settlement numbers between the two sides. This misunderstanding could have been avoided had the employee’s attorney spent more time in advance of the mediation with his client to fully understand the chronology of events as they actually occurred.
2. Being Rude and Combative.
There is a difference between being an assertive advocate for your client and being combative and hostile with the mediator and/or with opposing counsel. Telling the mediator how to conduct the mediation, refusing to discuss the facts of the case and requesting that the mediator communicate only numbers, or making insulting personal attacks on the other side will lead to a breakdown in the trust and good rapport that are essential to a productive mediation. Make the mediator your ally and not your adversary for the best results.
3. Failing to Include Your Client in the Mediation Discussion.
Some attorneys create a barrier between their client and the mediator to exert control over the process. This leads to the mediator questioning whether you are concerned that your client will make a bad witness and prevents the mediator from developing a positive rapport with your client. Talk with your client in advance of the mediation to set parameters on what information the client should convey to the mediator and the proper manner to communicate that information. If necessary, have an interpreter present so that the mediator can talk with a client who does not speak the same language as the mediator. Having your client leave a positive impression on the mediator is a beneficial factor that the mediator will be able to bring back to the other room to convey as a strength for your case that the other side should consider if the matter does not settle.
4. Determine if You are Missing Critical Evidence and Consider Waiting to Mediate Until You Obtain It.
Whether through formal discovery or informally through an agreed upon informal exchange of information in advance of the mediation, decide what documents and information are critical to your case, and consider whether it is necessary to hold off going into mediation until you have obtained this evidence. Often, the plaintiff in an employment case is at a disadvantage because important emails or other documents that are relevant to establishing an accurate factual account of what transpired are in the possession of the employer. Other times, the employer believes there is important damages information in the form of post-termination earnings or medical records that it needs to properly assess the case. Failing to obtain critical evidence in discovery or by requesting the other side to provide it informally, either in advance of the mediation or at the mediation, can prevent counsel from being able to conduct a proper evaluation of a case and may lead to a potential impasse. Some cases can be resolved quickly with minimum legal fees expended very early on in the case, or even before a case is filed in court, without the parties having all of the relevant evidence in advance (and mediators can be instrumental in making that kind of settlement a reality). But, particularly in cases where the Plaintiff is placing a high valuation on settlement, it will be more difficult for a case to resolve if there is a disconnect between the parties regarding what they believe occurred because both parties have not been able to analyze key evidence.
5. Giving Up Early.
Sometimes the gap in settlement offers between two sides appears unworkable hours into the mediation, but this does not mean a case cannot settle. If the mediator is encouraging you to continue the process, do not give up. Be patient, keep an open mind and let the process unfold unless and until the mediator tells you that you have reached an impasse for the day.
For suggestions on best practices for preparing for a mediation, please click here.
Polina Bernstein has over 20 years of experience as an employment attorney representing both employers and employees and as a mediator who loves resolving disputes. If you are looking for a tenacious, experienced and compassionate employment law mediator, please visit: www.bernsteinmediation.com and email [email protected] to find out about scheduling a mediation. The above summary has been prepared for general informational purposes only and is not intended as legal advice.