Why It Is Essential That You Work With a Mediator

by | May 2023

Michael Ludwig outside smiling

What ever happened to negotiating settlement the old-fashioned way (i.e. without a mediator)?

When I mentioned to a former opposing counsel that I was mediating employment law disputes full time, he reminded me that when he proposed mediation in a case we had together some time ago, I suggested that perhaps we could do it “the old-fashioned way,” negotiating a settlement between the two of us without a mediator.

The truth is, decades ago when I started practicing employment law, mediation was around but it was not ubiquitous like it is now. Today, few employment disputes are settled the old-fashioned way, with the attorneys negotiating with each other directly. What changed? Over time, attorneys and parties alike have come to recognize the distinct role of the mediator, and the incredible value skilled mediators bring to the settlement process.

Mediation Is Efficient

To begin with, mediation is an efficient process. With a skilled mediator, a settlement negotiation that could have taken weeks or months can be completed within a day. The typical mediation involves all decision-makers setting aside a particular block of time to focus solely on negotiating a settlement.

This is rarely the case when attorneys negotiate without a mediator. Instead, a party will communicate an offer or a demand, and days or weeks may go by as clients are consulted, strategies are devised, and communication between attorneys is coordinated. All the while, attorney fees are mounting, litigation positions are hardening, and the parties’ interest in reaching a settlement may be waning.

A mediator can compress and expedite this process in mediation by focusing the parties on the singular goal of resolution and maintaining that focus until a settlement is reached.

Parties Want to See Their Attorneys As Strong Advocates

Second, the mediator plays a very different role from litigation counsel. Parties usually hire attorneys to aggressively advocate for their position and, by and large, to try to win the case. Litigation is adversarial and competitive by its very nature.

Settlement negotiations, on the other hand, necessarily require compromise and tacit acknowledgment of weaknesses or possible weaknesses in your position. Some clients may be uncomfortable with their attorney stepping outside of the aggressive litigator role and taking on a more collaborative posture.

In mediation, attorneys can remain strong advocates for their respective clients’ positions while the mediator assists in navigating and facilitating the discussion of risk and compromise.

Mediators Bring Empathy to the Resolution Process

Lastly, a skilled mediator can bring empathy to a settlement process, which might otherwise be purely transactional. Employment law disputes can be very emotional. The plaintiff, on one hand, believes they were harassed, discriminated against, retaliated against, and/or compensated unlawfully. The defendant, on the other hand, may believe they did nothing wrong. Both sides want to be heard and understood. The mediator should listen to the parties, acknowledge their experience and reality, and help them get to a place where a reasonable settlement is a desirable, and indeed preferred, outcome.

While the “old-fashioned way” of settling cases by direct negotiation remains effective in some cases, mediation has evolved to become the de facto means to settle employment disputes. Mediation allows attorneys to remain in their role as zealous advocates and provides a focused period where reaching a settlement is the primary objective. In addition, mediators hear and empathize with the parties, which can provide an emotional release that allows them to let go of hard feelings and move to a place of resolution.

Most employment disputes can, should and will be settled. Now more than ever, mediators play a critical role in that process.

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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.