Mediation as an effective method of dispute resolution in labor and employment law

Benefits of Mediation Overall

A. Self Determination –

Parties decide

Neutral mediator

No judge or arbitrator

Shape own resolution

B. Cost

Saves cost of litigation

Amount saved depends on when mediation held

C. Time

Usually one day

Litigation: years

E. Certainty

Parties know what the outcome is.

Litigation: impossible to know

F. Confidential

Confidentiality agreement

Confidentiality provision in settlement

Avoid publicity

Public record in court

G. Disruption

To business and to life

H. Enforceable

Settlement agreements – enforceable in court

1. My experience is from the government perspective, not private practice

A. The agency I work for - EEOC – handles federal charges of employment discrimination based on race, sex, religion, age, national origin, disability, and GINA

B. In 2012, Commission received about 100,000 new charges of discrimination

C. The Commission started a mediation program in 1998

D. Offer early mediation, right after charge is filed

E. Voluntary whether the parties agree to mediate, and voluntary whether they settle

F. Confidential – information obtained in mediation is destroyed at end of session

G. Free

H. Program has been well received – more than 95% of charging parties and employers say they would use it again

I. Helps the agency reduce its backlog of cases

J. For those parties who come to mediation, more than 70% of the time, cases are resolved

K. Helps the agency reduce its backlog of cases

L. For those parties who come to mediation, more than 70% of the time, cases are resolved

2. How private attorneys introduce mediation to their clients

A. Generally attorneys explain:

Length and cost of litigation

Disruption to your life: like being married to your worst enemy

B. Defense attorneys: Cost Benefit analysis

Cost of process: to win and to lose

Likelihood of success

insurance

Other factors: publicity

C. Plaintiffs’ attorneys

certainty

Time savings

Cost

Need money now: unemployed

Emotional release

D. One problem: when the subject of mediation is raised.

Early: may not be ready

Late: may have paid too much for litigation

E. John Higgins, defense atty - $45,000/$600,000

F. Defense attorney: success, but at what cost? Won but client said “thank you very much, and I hope I never see you again in this lifetime”

G. Problem for attorneys on both sides: why settle? – don’t you believe in my case?

H. Value of early settlement compared to victory in court–

I. May be weakness in case: bad witness, bad facts, prior bad cases, publicity

J. May be practical reasons to settle unrelated to the merits of the case:

Wants to move, has another job, wants to sell business, doesn’t want other employees to know

K. plaintiff was the brother of the defendant – their mother told defendant she wouldn’t speak to him again until he settled with his brother

3. How to prepare clients for mediation

A. Know the basics –

B. Sometimes clients have information that strengthens their position:

1. Information about other lawsuits the claimant has filed

2. Tape recording – job interview

3. Letters

4. Sample jacket

5. Foot

4. Where mediations are conducted

Usually best if it is a neutral location – court, government agency, private mediation firm – don’t want one party to feel that the other side has an advantage

Sometimes in a private firm, if both parties agree

Some companies have tried to have their own mediation process

1. Claimant may worry that process is not neutral

2. Won’t trust the mediator, if company employee

3. Worry that the company is trying to obtain information from them, to build their own defense

4. Mediator is paid for by the company

5. Worry about confidentiality

MOCK MEDIATIONS

Дата добавления: 2015-10-30