Mediation: How to Prepare to Maximize Settlement Opportunities

 

As we discussed several years ago, mediation is not only recommended before trial, but is actually a mandatory step in the litigation process in Toronto.

Mediation has a number of benefits to employers and employees involved in disputes, including avoiding the cost, time, emotional toll, and public disclosure of a trial. As a neutral third party, the mediator’s role is not to determine a “winner” and a “loser”, but to help disputing parties find a mutually agreeable solution in a faster and more cost-effective way than going to trial.

A skilled mediator can guide parties toward a resolution. But there are ways in which the parties can prepare for and approach mediation in order to ensure that the process is a successful one.

Scheduling

Mediating early in a legal dispute –preferably even prior to commencing a court action– helps disputing parties avoid the trap of choosing between protracted negotiations and rushing to court. Scheduling pre-litigation mediation opens the lines of communication, narrowing the issues, avoiding increased polarization, and, at best, enabling a more efficient settlement.

Preparation

A mediation brief is a disputing party’s opportunity to provide information to the mediator before the mediation. Most employment mediations are only three hours long. It is therefore imperative that the mediation brief be concise and persuasive, with supporting documents, so that the mediator can come to the mediation with an understanding of the case, and focus their efforts on assisting the parties in reaching a resolution.

Counsel should also come to mediation with draft settlement documents prepared. Having the basis of an agreement at the mediation can save a significant amount of time.

In order for mediation to be successful, not only must a representative of the employer be present, but it is crucial that the representative have authority to make settlement decisions on behalf of the employer. When the ultimate decision maker is in attendance at the mediation, the mediator can communicate with them directly and matters can be resolved immediately, saving the additional cost and time of deferred decisions.

Attitude

There are no “winners” and “losers” in mediation. Disputing parties are most likely to reach a mutually agreeable solution if they come to the mediation with a realistic view of the strength of their case and what they might deem an acceptable settlement. Any potential settlement must be considered against the prospect of going to trial and the likely results of a trial. Avoiding adversarial language and indicating a willingness to reach a resolution are also vital.

For more information about our Mediation Services, please contact us for a consultation.

Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues. Whether you are an employer or an employee, we can help. Contact us to see how.

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See also our blog “Employment Law 101: Overtime Pay, Employer Obligations and Employee Settlements”.