How to effectively prepare for an employment mediation
By AdvocateDaily.com Staff
Fisher, principal of Barry Fisher Arbitration & Mediation, tells AdvocateDaily.com that it makes little sense to take an aggressively adversarial approach during the early stages of a dispute, given the realities of modern litigation.
“The odds of a trial are something less than one per cent, while the chances of settling are more like 80 or 90 per cent,” he says. “So, my starting point is that you should be thinking about mediation and settlement from the very beginning.”
Israel, founding partner with employment and labour law boutique PI Mediation, says many disputants are tempted to strike an antagonistic tone in demand letters and pleadings.
“There’s nothing to be gained from calling the other person names and raising ridiculous claims that you clearly can’t prove,” he says. “Most mediators have stopped doing plenary sessions for the same reason because people come out hot, they puff their chests, and everyone gets emotional.
“Then you spend the next three hours repairing the damage done in the first three minutes,” Israel adds.
Instead, he says parties can set themselves up for a mutually satisfying resolution at mediation by adopting a more conciliatory tone during earlier interactions.
“A rational approach can help the parties to arrive at a pragmatic, reasonable, responsible resolution of the problem,” says Israel, noting that counsel has a key role to play.
“I find it really irksome when you get a plaintiff’s counsel who goes straight in with a statement of claim, without even issuing a demand letter,” he adds. “It forces the other side to dig in their heels.”
During his decades in practice acting for claimants in employment law matters, Israel made a point of calling opposing counsel for an open conversation about the case before filing any material in court.
“We usually managed to resolve it within a couple of calls, and never got as far as issuing a claim,” he says.
According to Fisher, rationality should also be a feature of both parties’ behaviour during any negotiations that occur ahead of mediation.
“I’m not against negotiation before mediation, but the danger is that you put yourself in a corner if your own reasonableness is not reciprocated by the other side. That’s not productive,” he says. “For a mediator, it’s easiest when there have been no previous offers, and we’re starting fresh.”
As the mediation session approaches, Fisher says lawyers should be in more frequent contact with their clients, ensuring that necessary documentation is available. For plaintiffs, in particular, evidence of a serious job search may be necessary to show they have met their duty to mitigate damages.
“Without regular contact, a lawyer could get within two weeks of the mediation and find that the client has done nothing as far as the job search goes,” Fisher says. “Even with a great case, if you can’t show that the job search efforts were abundant, it can cost you a lot of money at mediation.”
Israel says all parties can benefit from a quick call between the mediator and counsel for each side in advance of the session.
“As the mediator, it’s good for me to be aware of any issues in the relationship between counsel as well as counsel and their clients, or specific requirements in the manner of handling the mediation,” he says. “I’ve found counsel are not always ready for the call because they’re in the middle of something else, but I think it’s a missed opportunity.
“There’s nothing inappropriate about it as long as you steer clear of the substance of the matter,” Israel adds.
In addition, counsel should devote some time to managing their client’s expectations in terms of settlement, Israel says.
“My standard comment is that today is not about justice, it’s about what’s achievable,” he says.