Maybe you are one of the lucky employers who has not been sued in court or received a charge filed with a federal or state agency enforcing employment laws, like the Equal Employment Opportunity Commission (EEOC) or the Department of Labor (DOL). If you have been litigation free so far, chances are that the odds eventually will catch up to you. That is just the cycle in today’s employment environment. Even when employers feel like they are conducting their businesses lawfully, legal challenges may arise from a disgruntled employee. It is even more frustrating to realize that the former employee who has filed an EEOC charge is the employee you bent over backwards to help improve and/or address their concerns. Sometimes that is just the way it goes and now you are in “litigation.” 

Mediation Is One Option

You have an option for potential resolution that can avoid the time consuming and expensive litigation process. Mediation is the process where the parties hire a neutral mediator practicing in alternative dispute resolution (ADR) in an attempt to settle the disputed claims. Mediation typically is offered, and sometimes ordered, by both federal and state courts. Likewise, the EEOC and many state agencies offer voluntary mediation at the onset of the charge prior to proceeding with the investigation. Mediations that are ordered by the court sometimes use a magistrate judge not involved in the case at no charge to the parties. When the courts “suggest” or offer mediation, the mediator typically comes from the Rule 31 Civil Mediator roster of mediators or the parties agree to use a private mediator, which is paid for by the parties. In the EEOC process, mediators are usually full-time members of the agency or supplemented by private mediators offered by the EEOC free of charge.

Common Objections to Mediation

Employment law attorneys are fully aware of the questions and concerns expressed by employers in accepting mediation:

1. I did nothing wrong – why should I we agree to settle this bogus case?
2. Millions for defense and not one red cent for tribute!
3. If I go to mediation and we don’t settle the claims, it will have been a waste of time and money.
4. If we settle this case/charge in mediation, other employees will line up at the door with more meritless claims for settlement.
5. We just filed a motion for summary judgment, so why would we agree to mediation now?
6. Can the court really force us to mediate?

These are all good questions and concerns but hardly a roadblock to mediation. The fact is that the vast majority of employment cases either settle or are dismissed through summary judgment. Moreover, the majority of these cases are settled before trial as courts are increasingly reluctant to grant summary judgment to employers.

So why choose mediation?

Addressing the above questions and concerns present some solid grounds for proceeding to mediation:

1. “I did nothing wrong…”
   • Sometimes the employer did nothing that may have “violated the law” but the employee still feels wronged and wants their “day in court.” If a case gets to a jury, it is more likely that you may be judged on “fairness” and not the law.
2. “Millions for defense…”
   • These are “great clients.” But the fact is that over the course of litigation, which can take several years, the time and money spent starts to weigh heavily on the employer and the former employee who thought “justice” was just a few months away.
3. “A waste of time…”
   • Cases that do not settle in mediation, often settle shortly thereafter when one of the parties decides that maybe the last “offer” was reasonable, and they should have accepted it. For example, a spouse’s reaction at home to a rejected settlement can fuel a return: “You walked away from $$ money?! Go back and get it!!” Some cases mediate two or three times before settling. Moreover, you can learn things about your case and some of the strengths and weaknesses that you did not know before mediation.
4.  “Others will follow…”
   • There is no empirical evidence to support this concern. Settling cases or even agreeing to mediate cases does not produce more claims.
5. “We have filed for summary judgment…”
   • This may be the most valid reason to question proceeding to mediation. The employer has spent a significant amount in legal fees during the discovery process and drafting summary judgment pleadings. But unless it is a “slam dunk” motion, there is no guarantee that the court will grant a motion that disposes of the case in its entirety so the prospect of trial looms heavy. Moreover, a viable motion for summary judgment can provide an employer leverage to reach a favorable settlement in mediation when the former employee comes to understand that they may “get nothing” and not have their day in court.
6. “Can the court force us…?” 
   • Yes, the court can. Why? Because it is the court!

Good mediators are worth their weight in gold. Choosing one that is experienced in employment law is key. Some former judges make excellent mediators as they carry the “aura of the robe” and have decided these types of cases for many years. But some judges are reluctant to exercise their judicial prowess for fear of alienating the parties and perhaps future engagements. Ultimately, most parties want a mediator who is willing to do some arm twisting, even their own, in an effort to resolve the claims. Mediation offers both parties something they cannot get at trial – control of their own destiny. The parties have the power to resolve their dispute on their terms that day, not the court or the jury’s terms months (or years) down the road. For many employers, and over the course of our legal careers, our clients, even the reluctant ones, find the chance to control the outcome to be persuasive. 

So, try mediation. Chances are good your case will settle and, if not, you will be better informed about the merits of your case. If you have mediated before, you know the benefits and continuing to use mediation to resolve your employment disputes makes good sense.

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