There are times when parties want to avoid litigation as a means for resolving a dispute. Some employment disputes are particularly well-suited to pre-filing or pre-discovery mediation. For example, in a case where the reputation of an individual or an organization is at stake, there is a great chance that early mediation will result in resolution. A party faced with disclosure of damaging information and the unavoidable publicity that may result, often sees a resolution in mediation as the best option. Pre-suit mediation is also favorable to the party possessing the damaging information since once a lawsuit is filed, it has lost some of its leverage. These type situations are ideal for pre-suit or pre-discovery mediation.
Another time pre-filing mediation is particularly fitting is when the remedy sought involves little money and is relatively easy to implement. Cases involving failure to accommodate under the ADA, failure to offer leave under the FMLA, or single-party claims under the FLSA are some examples. Here, pre-suit mediation is practical.
Pre-filing mediation may also enhance the possibility of resolution in disputes where there is or may be an ongoing relationship. This is true, for instance, in cases involving failure to accommodate or to offer leave, where the parties may want to continue the employment relationship.
Still another opportunity for pre-suit or pre-discovery mediation is when parties lack the financial or emotional wherewithal to see a case through. The parties may be aware of weaknesses in their claims or defenses, may have less than ideal witnesses, or may want to avoid costly discovery. There are virtually limitless concerns parties may have, including, avoiding disclosure of confidential medical records, comparator information or financial data. Mediation in situations like these can be especially cost-effective.
As mediators and mediation advocates, we know that every day great minds meet to resolve problems in mediation. But when to meet may have significant impact on the likelihood of resolution, so when litigation is threatened or anticipated, decision makers and their counsel should consider whether pre-suit or pre-discovery mediation is appropriate. Decision makers should weigh the benefits of early mediation against the risk and uncertainty of going forward, and then explore the opportunities and benefits pre-suit mediation offers.