Mediation of employment matters is on the rise. When faced with an employment case, your company may be ordered to mediation or the court rules may require it. It is also common to receive a letter from the Equal Employment Opportunity Commission (EEOC) or state agency advising the company that by choosing to mediate, the company will not be required to go to the time and expense of a charge investigation or submit a position statement. Below are four issues to know before considering whether mediation is right for your case.

1. Cost

EEOC mediations are typically no-cost, so long as the parties use an EEOC mediator. The same is true with respect to state agencies. If, however, the parties choose to use a private mediator, then they will be required to pay for the mediator’s time, which the parties then must agree at the outset as to the split of payment by the parties. If the case is settled, mediation costs may be shifted to one party as part of any settlement.

2. Formalities

Mediation is sometimes confused with arbitration. Mediation is usually – even if it is not EEOC or state-sponsored mediation – non-binding. By contrast, an arbitration proceeding is usually a binding proceeding on the merits of the claims and similar to a “mini-trial.” At an arbitration, there will be a person, or a panel of persons, acting in a capacity similar to a judge, who hears and evaluates the evidence and then renders a decision the claims. In mediation, the mediator listens to the parties discuss their positions in an informal setting, but does not render a decision on the claims. Instead, the mediator serves in the role of a facilitator, pointing out the strengths and weaknesses of both sides’ cases and attempting to reach an agreed upon resolution of the claims. 

3. Mediation Framework

The ground rules for the mediation will typically be available, in writing, for review before the mediation. This document will include privacy considerations for the mediation. A mediator will often ask the parties to submit a mediation position statement in advance of the actual session to become familiar with the issues. 

An opening session, with all parties present, may be part of a mediation. At this time, the parties, generally through counsel, summarize the strengths of their cases. Thereafter, the mediator will move forward with the primary focus of the mediation, which is private sessions with each side, often called caucuses. During these private sessions, the mediator will generally work with each side to help them understand the strengths and weaknesses of their positions. Mediators use a variety of techniques in these sessions to help the parties understand the risks of continued litigation and to reach an agreed resolution. 

4. Requirement of Settlement?

There is no requirement that a case settle at mediation, but many times cases settle or reach a point where settlement negotiations can be more readily pursued later. Even if the case is not resolved, mediation can sometimes provide the parties with input that helps them look at the case differently, such that with some additional evidence, the case will be resolved shortly thereafter.