What to Expect in Mediating Your Employment Case

After your employment case is filed in federal court or state court, most courts require the parties to meet to attempt to negotiate a settlement of the case. This formal negotiation session is called “mediation,” and the meeting is overseen by a neutral “mediator,” who is usually another lawyer who has experience litigating employment cases. Sometimes the mediator is a judge, who has the added experience of witnessing how juries have decided cases over which he or she has presided.

PRIOR TO MEDIATION

Counsel on both sides of your case will confer to decide who should mediate your case. Selection of the mediator is a joint decision. A few days before mediation, counsel on both sides usually prepare and send to the mediator and to opposing counsel a “mediation statement,” which is intended to educate the mediator about the complaint and the defenses, important evidence in the case, important points of law, and the damages which are collectable in the case.

MEDIATION DAY

A few days after delivery of the mediation statements, the parties and the mediator convene. These days mediation meetings are held on Zoom, like this: the mediator has one “Zoom room,” where all parties, counsel, and the mediator meet to discuss preliminary matters and the rules of mediation; and the mediator also has separate “break out rooms,” where the parties and their counsel can meet and confer privately. The parties “call in” the mediator to their private Zoon rooms as needed.

NEGOTIATIONS AT MEDIATION

And, the mediator will need to be called in throughout the mediation day (yes, mediation typically takes a full day). This is because it is the mediator’s job to carry messages from one party to the other (somewhat like a tennis match) throughout the day. The mediator is skilled at relaying information in a way that parties can “hear,” and which is conducive to reaching resolution. With each message, the mediator usually also carries with him or her a monetary amount which the delivering party authorizes as an amount to settle the case. Because parties frequently disagree on what is an appropriate amount, the mediator must shuttle back and forth carrying slowly changing numbers from each side, which can take some time.