Employment & Labour

Mediation in employment matters gives parties agency

By Paul Russell, AdvocateDaily.com Contributor

Mediation is one of the more effective tools in a modern-day litigator’s arsenal, Toronto employment lawyer Ellen Low tells AdvocateDaily.com.

“Practically speaking, very few employment law matters get to trial in Ontario anymore because of the time and expense involved,” says Low, principal of Ellen Low Employment Law. “In Toronto, you will have to go through mediation before being given a trial date.”

Due to a backlog of cases, she says judges “push the parties to resolve their own differences, without the need of judicial intervention.”

Information on the Justice Department’s website supports that, stating that “98 per cent of civil suits never make it to the courts.”

Low says she spends the majority of her professional time in mediation, where the outcomes are often better for clients than through a trial.

“Resolutions can be personally crafted in mediation since the two parties are participating in what a settlement looks like,” Low says, as compared to a traditional court decision imposed by a judge.

In addition, there is flexibility to include elements that a judge would not address in a ruling, she says, such as a letter of apology or the requirement that someone participate in retraining.

Low says the latter might be requested if the case involved sexual harassment, and the settlement states that managers must undertake sexual harassment training, “so no one else has to go through that experience again.”

“In mediation, you will get things a judge will traditionally not order. There is more agency with respect to the settlement,” she adds.

Though mediation is not as formal as a trial, Low says it can be just as challenging for counsel.

“It’s a bit of a chess game, as there is a great deal of strategy that goes into it,” she says. “You have to know how to navigate the process to achieve what your client wants.”

Low says a crucial first step is to select the proper mediator.

“Do we want someone who is conciliatory and solution-based or someone who is more hands-off and will let the parties duke it out a little?” she says. “There is a huge amount of thought that must go into the process.”

While a mediator cannot impose a settlement, “some will give recommendations or opinions” on the case they are hearing, Low says.

Mediators can either hold joint sessions with both parties in the room or meet separately with each side, she says.

“You have to decide which is better for your client,” Low notes. “The mediator controls the process, but counsel also has some control. At times it can be beneficial to have private talks with the opposing counsel in the hallway.”

If a client has little or no interest in reaching a mediated settlement, she says that can also influence the choice of mediator.

“You have to select someone you can have a frank conversation with and say, ‘We are here because we have to be, but we want a judge to make a determination on this particular issue,’” Low says, adding she relies on her advocacy skills and diplomacy to succeed in mediation.

“More often than not, you are pushing your version of the facts and using your skills as a litigator to get the mediator on board,” she says. “You want to convince him or her to go into the other room and get the best possible deal for your client.”

In many cases, Low says mediation can be a positive experience for clients as “it’s often the only opportunity they have to talk with a neutral third party about what they have been through. You are giving your client a chance to be heard, which is very important to them.”

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