Preparing to mediate your employment case? You’ll want to take the process as seriously as you would preparing for a trial, but there are some very real differences between trial preparation and mediation preparation. As a mediator who specializes in employment mediations, I’d like to share some practical advice to help you prepare for an employment law mediation.
Regardless of whether the case is brought in state or federal court, Florida employment cases are usually subject to mandatory mediation. Given that you’re going to spend time and money mediating, you may as well do it sooner rather than later. I happen to be a believer in either pre-suit mediation or very early mediation.
People may argue that you don’t have all the facts at the beginning of the case, or that you haven’t conducted discovery, but often you’re dealing with raw emotions with these kinds of cases. Mediating a case earlier in the process before people have dug in their heels can be helpful if there is a willingness to put the brakes on before the case takes on a life of its own. While you may not have all discoverable information available to you, you probably have sufficient information to identify the interests and goals of the parties, which opens the door to a path for resolution.
Regardless of when the mediation occurs, preparing for that mediation session pushes attorneys to sit down with their clients and perform an objective, realistic risk analysis. That includes addressing questions like, what’s the best outcome if we litigate? What are the risks? On the defense side, how is this case disrupting the defendant’s business? What does a winner-take-all approach really look like?
Often attorneys don’t stop and discuss these questions with their clients unless they have a mediation scheduled or some kind of deadline. Using tools such as a decision tree helps your clients get past the winner-takes-all mindset by identifying actual strengths and weaknesses of the case, and acknowledging there are outcomes other than those desired by your client!
The risk analysis helps give your client a realistic expectation of what they can expect if the case does not settle at mediation. A realistic appreciation for the alternative to compromise is the first step toward compromise.
Take advantage of this objective analysis of the case to talk about damages. What damages are available and how are those damages are calculated — your lost wages matter but how much you loved your job does not, for example.
Regardless of whether you represent the plaintiff or defendant, you want to be sure you know your case, the law, the documents, the potential witnesses (their demeanor and testimony,) and the strengths and weaknesses of your case. You want to have statements from witnesses if you’ll use them during the mediation. You want to get your documents in a row.
You may develop the “story” of the case as you would prepare the opening statement for a jury. But there are some very real differences between trial preparation and mediation preparation. While you want to present your case, and advocate for your client, if you are committed to reaching a resolution, you need to be able to put yourself in the shoes of the other side, and give due consideration for what, other than a winner-take-all approach, will resolve the dispute.
Your preparation should extend beyond knowing your case in and out from a factual and legal perspective. You should talk with your client about the process and your understanding of what is important to achieve, what is reasonable to expect, and what is not.
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