The Benefits of Early Mediation and Best Practices

by | February 2023

Michael Ludwig outside smiling

When Is the Right Time to Mediate?

An early mediation can be effective with proper preparation. “It is too early to mediate,” “we need to conduct some discovery,” or “we need to take a deposition,” are sentiments that can derail attempts at early mediation. On the other hand, cases can be more difficult to resolve when they are so far along that the parties have become entrenched in their positions or too invested in the case, financially and emotionally, to meaningfully compromise. So, when is the right time to mediate? As an employment mediator, I see again and again that it usually is better to be too early than too late.

Mediating Before the Parties Are Too Invested Financially Removes Potential Obstacles to Settlement

A primary advantage to mediating an employment dispute early on, including pre-litigation, is that the parties have not yet incurred significant attorney’s fees and costs. Fees and costs may become an impediment to settlement after either or both sides have become financially invested in the outcome. To compensate for their investment, a plaintiff may require a higher settlement later in the litigation, while a defendant may require a lower settlement to make up for their own investment in fees and costs. I have heard many times from attorneys on both sides that “the other side’s attorney’s fees aren’t my problem.” But the other side’s fees can become your problem if they are an impediment to reaching a settlement.

Mediating Effectively with Incomplete Discovery

Concerns About Early Mediation

A challenge with mediating early is that the parties often will be trying to negotiate a settlement based on imperfect or limited information about the other side’s position. An employer-defendant may be concerned about overpaying, as their initial reaction to an employment lawsuit may well be that they did nothing wrong. The plaintiff, on the other hand, may be concerned about settling for too small of an amount if they have not received the employer’s documents in discovery or deposed the employer’s witnesses. If both sides are comfortable negotiating based on imperfect or incomplete information, then an early mediation can be an efficient way to resolve a dispute without incurring significant fees and costs.

Consider A Voluntary Exchange of Information Before Mediating

A key to an early mediation being successful often is a voluntary exchange of documents or information to get the parties to a place where they are comfortable negotiating a resolution. In single-plaintiff employment cases, a plaintiff can secure a copy of their personnel file and pay records pre-litigation, but that’s usually about it. However, the parties can condition an early mediation on receiving certain documents or information from the other side. Testimony that might otherwise be secured in a deposition could be provided in a declaration.

So why not just wait until sufficient discovery is completed to mediate? Depositions and written discovery, and discovery disputes in particular, can be time consuming. And more time spent litigating means more fees, which can make a dispute more difficult to settle. An agreed-upon exchange of documents and information has become a common protocol for avoiding full-blown discovery and depositions in wage and hour class actions and PAGA actions. This can also be used to facilitate early mediations in single-plaintiff cases.

Avoid Last-Minute Surprises

A note of caution is that a voluntary exchange of documents and information for use in mediation should be done sufficiently prior to the mediation to be useful. At times, it can be counter-productive to bring documents or declarations to the mediation that were not disclosed prior to the mediation date. A plaintiff-employee will want time to assess the veracity of new evidence. A defendant-employer may need to have internal discussions to secure settlement authority for the mediation, and if new evidence surfaces for the first time at the mediation, it may be too late to secure additional authority. Most parties prefer to have additional time to consider the evidence being provided, and perhaps do some confirmatory investigation on their own.

Most employment disputes can, should and will be settled. With adequate preparation, settlement discussions can start right away with an early mediation.

Want to connect? Please find me on LinkedIn.

Hi I’m Mike Ludwig

I committed myself to honing my craft as a mediator and relentlessly learning everything I could about dispute resolution. I will endeavor to share thoughts and insights about some facet of mediation, negotiation, and dispute resolution, and other information that could be helpful or interesting to you.