In earlier posts, we discussed the best time to mediate different types of employment or ERISA matters. Although some disagree, selecting a mediator to facilitate a settlement based on a meeting of the minds may be the most important part of the mediation process. Even though mediation is a party-driven process, the mediator’s knowledge, skill, experience, style and ability to handle the type of individuals involved in the dispute has a substantial impact on the resolution of the dispute. With apologies to Kyra Sedgwick, the goal is to find The Closer.

In most private mediations, the parties and their counsel select the mediator, and bear the burden of selecting an appropriate person to mediate the dispute. In making a selection, there are a number of issues the parties may want to consider.

Continue Reading Looking for The Closer for your dispute. . .

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. 


Continue Reading Mediating After Early, But Limited Discovery