MeDiATing eMpLOyMenT CLAiMS in The wAKe OF COViD-19 labor & Employment law Section Chairs : Amanda Biondolino - Sass Law Firm & Jason Pill - Phelps Dunbar LLP
After 30 years of practicing employment law as a trial lawyer , in-house counsel , and now as a mediator , I thought I had seen it all . Nothing prepared me , however , for the year-long interruption of civil trials caused by COVID-19 . Employer and employee litigants have been left in limbo without the means to resolve employment claims in court . Parties have resorted to alternative dispute resolution , especially mediation , in greater numbers . Because employment claims are often more complex than other types of litigation , success at mediation requires counsel to carefully choose the right time , the right mediator and the right approach .
Choosing the Best Settlement Window
Counsel should consider early mediation to avoid discovery and litigation costs . The challenge , particularly for the plaintiff , is negotiating an agreement in the absence of discovery . Parties may mitigate this information deficiency by agreeing to take a key deposition or exchange certain information before early mediation . The
Because employment claims are more complex than other types of litigation , success at mediation requires counsel to carefully choose the right time , the right mediator and the right approach .
emotions of the parties should also be considered . If emotions are running high , which is common in a sexual harassment or hostile work environment case , early mediation may be unproductive .
If early mediation is not advisable , another potential mediation window exists after a dispositive motion has been filed , but before the motion has been decided . Mediation is often effective during this window because both parties face significant , case-changing consequences . agreement by identifying options , often hidden , that create value and satisfy mutual interests . This takes strong interpersonal and listening skills , creative problem-solving ability , and empathy . The mediator must create rapport with the employee so the employee feels heard and understood , while demonstrating to the employer that the mediator understands the challenges of running a business .
Persistence is one of the most valued qualities in a mediator , according to an American Bar Association study . 1 The respondents to this ABA survey expressed dissatisfaction with mediators who threw in the towel too easily and sought mediators who exerted “ pressure ” to keep parties at the table .
Characteristics of Successful Employment Law Mediators
While experience and knowledge of employment law is important , that alone does not enable a mediator to facilitate settlement any more than knowledge of contract law makes Choose Mediation Advocacy one a great negotiator . Another Over Trial Advocacy essential quality is the mediator ’ s Many litigators default to trial willingness to fully prepare . You advocacy during mediation which should also select a mediator who may alienate the other party . is a skilled dealmaker . A dealmaker Mediation advocacy is the skill of is adept at motivating parties with competing interests to reach Continued on page 43
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