Employment Law Mediation

Employment Law Mediation

Employment-related disputes can potentially have costly results for both parties. However, one option that can help resolve conflicts more efficiently is mediation. While mediation is a more informal process, as compared to litigation, good legal representation is still essential to ensure the parties’ rights are protected and settlement is in their best interests.

What Is an Employment Mediation and When Does it Arise?

Mediation is a nonbinding, interactive process through which a neutral third-party assists parties in coming to a settlement.  The mediator does not make decisions or force a settlement.  They help facilitate communication so the parties can find common ground.  Mediation can be used for any employment-related claim.

Generally, mediation is voluntary, although in some cases, parties may be required or strongly encouraged to attempt mediation before seeking court intervention.  For example, courts may have mandatory mediation programs for certain types of cases, such as employment discrimination or wage and hour claims.  The Equal Employment Opportunity Commission (EEOC) also requests that parties before it submit to voluntary mediation.  Employment contracts and collective bargaining agreements may also contain a mandatory mediation provision in the event of disputes.  However, even where submitting to mediation is required, there is no obligation to agree to a settlement or continue with the process if an agreement cannot be reached.  The parties must participate in good faith.

What Are the Pros and Cons of Employment Mediation?

Mediation offers many benefits to both sides of a dispute. The parties control the process, so no one can impose a settlement. They also have flexibility in crafting a settlement that meets their needs. The process is private and confidential, which is particularly useful since employment matters can reveal sensitive information. In addition, settlement communications conducted during a mediation are generally inadmissible in court, so they will not be revealed during litigation if the mediation is unsuccessful.

The process is often faster and less expensive than going to court. Litigation typically requires extensive court filings, appearances and discovery, while the parties can limit such procedures in mediation. This may reduce attorneys’ fees and court costs and speed resolution. Costs are particularly low for court or agency mandated mediation programs. These are usually free, other than attorney’s fees.

When mediation works, it is invaluable. However, if the parties cannot come to an agreement, mediation may prolong the case as now the parties have to proceed to litigate and incur those costs on top of those for the mediation.

When Should Parties Conduct Employment Mediation?

As discussed above, mediation may be mandated by courts, agency regulations and employment agreements. Typically, this occurs shortly after a complaint has been made to the employer, agency or court. However, the parties can seek mediation on their own at any point during the dispute resolution process.

A desire for confidentiality or to save time and money producing documents for discovery may encourage the parties to seek mediation as soon as possible. However, parties may wish to wait to evaluate the strength of each side’s case before conducting mediation. Often, mediation is pursued right before or after important court rulings, such as those related to summary judgment, and pre- and post-trial and appeal decisions. Each side may want to avoid the costs and uncertainty of a court decision, or such a decision has already weakened their case, so settlement is a better option.

What Preparation Is Needed for the Mediation?

Before mediation can begin, the parties must agree to the terms.  Some of the key issues include:

  • Who will act as mediator
  • Where mediation will take place
  • Who may attend the mediation
  • How will costs be shared

As discussed further below, some of these issues will be affected by whether mediation is required by a court, agency or contract.

Prior to mediation, attorneys should educate clients about the process and the strengths and weaknesses of their case.  The parties should also understand the issues that will arise, options for resolution and the consequences of not settling.

In addition, attorneys will prepare a written statement for the mediator.  This provides pertinent background information on the dispute, explanations of key factual and legal issues, and the status of any litigation and settlement discussions.  It may also indicate acceptable settlement terms.  Relevant evidence is usually attached.  The submission may or may not be shared with the other party to the dispute.  Alternatively, two versions of these materials may be created – one for the mediator and another for the opposing party, which may have certain information redacted.

What Is the Structure of a Mediation?

Mediation is a structured process with scheduled meetings and certain expectations on each side. The various parties also have established roles in the proceedings.

Pre-Mediation Conference

The mediator will conduct a pre-mediation conference with the parties’ attorneys. The goal is for all sides to get sufficient information to facilitate discussions at the first conference. At the pre-mediation conference, the mediator will explain the process, discuss the mediation agreement the parties will sign and answer any questions.

The Mediator

The right mediator can make a significant difference to the case. Mediators should have the requisite training and credentials. However, other essentials include:

· Employment law knowledge and experience. Many mediators were previously in private practice or even judges who handled employment law matters. They should have experience handling the type of matter and issues involved in the case.

· Excellent communication skills. Mediators must facilitate negotiation, often under stressful situations. They should help parties address negative emotions in a constructive way and stay focused on the issues. Strong interpersonal and listening skills are key.

· Neutrality. The role of mediator requires an unbiased opinion. If there are any concerns about neutrality because of the mediator’s prior experience representing employers or employees, attorneys should seek references.

Note that the choice of mediator may be limited somewhat by the court, agency or employment contract. Often, there is an approved roster of mediators that the parties can select from for their case.

The Mediation Setting

The forum for the mediation varies depending on what gave rise to the mediation. For example, where an employment contract requires mediation, the agreement will also specify where mediation will be conducted. Court and agency mediation programs also provide a forum for mediation.

In the case of private mediation, the parties may turn to an alternative dispute resolution provider, such as the American Arbitration Association (AAA), that will administer the mediation.

The Mediation Conference

Once preliminary steps have been completed, both sides and their attorneys will attend the mediation conference. On the employer’s side, it is important that those with the most knowledge of the matter participate in the mediation. This may include supervisors and managers involved in the alleged misconduct. An HR representative may also be helpful if he or she has knowledge of the parties and employment history. In addition, those with the authority to settle the case must attend, such as the company owner or equivalent representative. The employer’s insurance company representative may also participate in person or by phone.

Employers and counsel should discuss the benefits and drawbacks of having specific individuals present. In some circumstances, there may be animosity between the parties or other reason to exclude someone from negotiations.

During the mediation, the parties will often begin with a presentation to both the mediator and the other side. Then the mediator may have separate meetings with each side to discuss their position and the strengths and weaknesses of their case. They may also discuss alternative solutions. By working with the parties separately and together, the mediator will attempt to guide the parties toward finding an acceptable resolution.

When Does Mediation End?

The parties decide when mediation concludes. They either agree to a settlement or reach an impasse.


When parties are able to settle, the terms agreed to are memorialized in a settlement agreement. The agreement can simply outline the material terms but leave the details to further negotiation, or it can address all aspects of the settlement in a formal, final agreement.


If the parties are unable to settle at the conference, they may schedule additional conferences or end the mediation. The matter could proceed to court, but the parties can still attempt to negotiate a settlement on their own while the case proceeds.


Employment mediation offers a valuable means of resolving disputes.  However, experienced legal representation is just as necessary in mediation as with litigation.  Once the parties agree to a settlement, they may not be able to contest that in court.  As a result, they need good legal advice to ensure their rights are protected.


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