(This article is Part 1 of a series by David Rocklin on the mediation process.)
We all know the statistics when it comes to litigated cases, particularly employment cases: approximately 95% of them settle at some point prior to trial. The massive expenses associated with prosecuting and defending even a relatively straightforward single plaintiff case (to the extent such a unicorn as a straightforward employment case exists) reach well into the six figures even before the summary judgment motion is filed. Courts are clogged, dark, and some have abandoned their ADR programs. Clients become increasingly anxious the closer they get to trial, in ways that even their depositions haven’t revealed. Testimony shifts, witnesses grow uncooperative, and juries remain unpredictable at best. With all that said, it’s a wonder every case isn’t mediated at some point, right?
Mostly, right. But some cases are assessed by their participants as being ill suited for the process. Why is that? What factors are they weighing? What factors should they be weighing?
As a private mediator who also manages the Employment Practices Group for the Western Region of a multinational carrier, I’ve participated in one capacity or another in over 500 employment mediations over the span of a twenty – plus year career, and I can absolutely recommend mediation as an effective way of addressing pre- and post-litigation employment disputes…with one caveat. Like any other decision made about the course of your case (whether you’re an attorney for one of the parties or one of the parties themselves), you should carefully evaluate the factors present in your situation before determining that mediation presents a good method of addressing them. Some of the factors I find helpful are:
-1- Is it too early?
It can be challenging to effectively engage in mediation when there’s been no discovery, no exchange of meaningful information, no depositions (and therefore no one’s story has been tied down under oath, nor has anyone been put through the deposition process and given a more realistic sense of how grueling litigation can be). The parties can understandably feel that without even a rudimentary sense of their case, mediation will result in pricing an untested theory or a set of disputed facts with no sense of the reality of the situation. Paying a mediator for what may amount, at best, to a session of information-gathering may not make much sense economically or from a time usage perspective.
One factor that may militate against this conclusion: if you’ve conducted some interviews, a bit of an internal investigation, and without any discovery at all you know you’ve got a problem scenario, mediation may help extricate all parties from a situation that will only worsen as discovery commences. If a witness or a party’s story is damaging at the outset, putting that story under oath helps no one.
-2- Is it too late?
The flip side of (1) above. Have fees and costs already outstripped the intrinsic value of the case? Has the litigation process – or, perhaps, any demands and counters informally exchanged – left the parties impossibly polarized? Do counsel disagree vehemently on an issue of law that may prove dispositive and needs to be adjudicated via motion practice? For all these reasons and more, is the case already too far gone?
Bias readily acknowledged: I rarely if ever feel this way. By the time a case is aged, developed and near trial, though it may be true that fees are exorbitant and the expectation of their recovery daunting to any hope of settlement, it is also true that something about the case has been revealed to one side or the other, or both. Witnesses won’t line up well and will contradict each other. Emails are ambiguous and lend themselves to multiple interpretations, many of them unhelpful. The calendar showing all the overtime worked actually includes days when the party was out of town. A developed case is a case that is giving off indications of how it may play to a jury, and though much has been invested in it that may never be recovered, the chance of avoiding trial should always be viewed as a good opportunity for that party coming out on the (even slightly) short end of those developments.
-3- Are you truly prepared to take a run at resolution?
Certainly this question is more appropriately put to clients. There are a multitude of dynamics underlying each case, of the strategic, emotional and financial variety, to name a few. Clients on both sides must come to terms with the one irrefutable fact of mediation: success means that it’s over. The argument, the sense of being right, the fight and how it can come to define one’s life, is done. Is everyone prepared to let it go?
It’s also a fair question for counsel on both sides. What has brought about the decision to consider mediation? A client who needs to hear from someone else as to the factual/legal implications of their position? Looking for some free discovery or intel on the case? Are you prepared to end the incurrence of fees and costs?
Or, have all parties objectively assessed the ramifications of litigating – the financial cost, the drain on time and resources, the utter invasiveness of it all – and concluded that mediation provides a confidential and secure way of bringing the dispute to resolution?
There is another scenario, and it may well be the most common. Some of those necessary parties in the decision tree – the attorneys, the employees directly involved – come out in favor of mediation. Others aren’t so sure. In our next blog article, we’ll discuss talking to clients about mediation and overcoming their resistance in the name of ending a potentially expensive, explosive and disruptive dispute.
(c) 2014 David Rocklin. All rights reserved.
David Rocklin is a Mediator with EB Resolution Services. To schedule a mediation session with David, please call EB Resolution Services at (818) 753-2326.