In an earlier post, we discussed the type of case that lends itself to pre-filing or pre-discovery mediation. But unless the key motivating factors needed for pre-suit or pre-discovery mediation are present, mediating employment cases after early, limited discovery provides parties with one of the best chances for expeditious resolution. It allows everyone to reduce the time and the costs involved to resolve a litigated employment dispute.
As lawyers, we know that it may be difficult or next to impossible to evaluate a party’s claims or defenses without some discovery. For an employee, the employer usually has the relevant documents and witnesses in its control. The employee’s counsel often recognizes the importance of serving requests targeted at key documents and deposing at least one key witness or company representative. This allows an employee to assess the risk of continuing litigation and shows that commitment to pursing evidence to support the claims.
For employers, deposing the employee is often critical to its defense and assessing the suitability of settling a case in a mediated process. This may be essential in “he said, she said” cases where witness credibility may be dispositive. An employer may also use the deposition to show an employee that litigation may be a long and difficult road; or that there are some issues that the employee had not anticipated.