EMPLOYMENT LAW CORNER
EMPLOYMENT LAW CORNER
The Role of the Mediator in Employment Disputes
ROGER W. FEICHT
Mediation is required before any trial in the state and federal courts in Florida, and employment claims are no different. While many litigants view mediation as a procedural hurdle to clear before reaching the courtroom, an effective mediation can save the parties significant time, expense, and emotional burden. However, the success of any mediation depends in large part on the skill and experience of the mediator.
What role does a mediator play in employment litigation, and what qualities distinguish an effective mediator?
Understands the Legal Issues of Both Sides
A strong mediator must have a baseline knowledge of the pending claims and defenses. Employment law encompasses a variety of complex nuances across federal and state statutes and regulations, including the Americans with Disabilities Act(" ADA "), the Fair Labor Standards Act(" FLSA "), the Family and Medical Leave Act(" FMLA "), the Florida Civil Rights Act(" FCRA "), and Title VII of the Civil Rights Act of 1964, just to name a few! Each of these statutes carries its own standards, burdens, and potential remedies, all of which directly impact the settlement value of a case.
Additionally, the law sometimes provides for specific defenses that shift the burden of proof or significantly limit damages. For example, an employer may assert legitimate, non-discriminatory reasons for an adverse employment action, shifting the burden back to the plaintiff. Similarly, certain statutory caps on damages or the availability of fee-shifting provisions can dramatically alter the risk calculus for both sides. These important defenses are often raised by sophisticated defendants and leveraged at summary judgment by defense counsel. A mediator who is unfamiliar with these legal dynamics may struggle to help the parties realistically evaluate their respective positions.
Therefore, it is important to engage a mediator who has experience representing both employees and employers and who understands the unique legal issues that impact the settlement value of the case.
A mediator with this dual perspective can speak credibly to each side, identify weaknesses in their positions, and guide the discussion toward a realistic range of resolution.
Willing to Listen to Both Sides ' Explanations
Employment litigation often involves two parties with deeply held feelings about their respective positions. Plaintiffs are frequently unemployed former employees who are worried about their futures. They may feel betrayed by their former employer, demoralized by the experience of losing their livelihood, or driven by a desire for vindication against perceived wrongdoing.
Defendants, on the other hand, are facing the inconvenience and inherent cost of defending the claims and often feel frustrated and defensive. Management personnel involved in the underlying dispute may take the allegations personally, viewing them as an attack on their integrity or judgment.
These emotional dynamics are not merely incidental to employment disputes; they are central to them. Weak mediators simply shuttle offers and counteroffers back and forth between the parties without addressing the human element. Strong mediators, by contrast, are active listeners who dedicate the necessary time and effort to giving each side a fair opportunity to explain their story, express their concerns, and vent their frustrations. When parties feel heard and understood, they are far more likely to engage meaningfully in the negotiation process and make the concessions necessary to reach a resolution.
Persuasively Advocates for Compromise
Given the complex laws and unique personal circumstances inherent to employment disputes, it is crucial to use a mediator who can convince the parties, the lawyers, and any insurance representatives of the tangible benefits of settlement. Several dynamics specific to employment cases can make this a challenging task.
If the plaintiff employee has legal representation on a contingency fee
PBCBA BAR BULLETIN 19 basis, they are not paying attorneys ' fees throughout the litigation. As a result, they may prefer to " roll the dice " at trial and hope for a significant verdict rather than accept what they perceive as an inadequate settlement offer. On the defense side, if the defendant employer has insurance coverage, the employer may be less motivated to compromise and agree to a settlement payment because they are not bearing the financial burden directly. Additionally, the employees and management personnel involved in the underlying dispute are often hesitant to compromise for fear that doing so constitutes an admission of guilt or wrongdoing.
Given these dynamics, employment cases require a skilled mediator who has experience litigating cases through verdict and appeals and can speak with authority about the risks and uncertainties of trial. An effective mediator will draw on that experience to illustrate realistic outcomes, highlight the costs of continued litigation, and ultimately convince the mediation participants that a negotiated resolution serves their interests better than the unpredictability of a courtroom verdict.
Conclusion
In sum, an effective mediator in an employment dispute will understand the specific claims and defenses at issue, give the parties a fair opportunity to express their feelings about the dispute, and persuasively advocate for the benefits of settlement. Selecting a mediator who possesses subject-matter expertise, strong listening skills, and the ability to persuade reluctant parties to compromise can make the difference between a case that resolves efficiently and one that proceeds to costly and uncertain litigation.
This article is submitted on behalf of the PBCBA’ s Employment Law Committee.
Roger W. Feicht is a shareholder with the Gunster Law Firm where he represents employers and employees in employment and business disputes. He is also a Florida Supreme Court Certified Mediator. He can be contacted at RFeicht @ gunster. com