Josh Goodbaum: Hi, Amanda.
Amanda DeMatteis: Hi, Josh. What are we gonna talk about today?
Goodbaum: I want to talk about mediation. Mediation is a tool that we use to try to help resolve disputes on behalf of our employee clients. But a lot of our clients are unfamiliar with this concept of mediation. So, what do employees who are involved in an employment law dispute need to know about mediation? What are the nuts and bolts of mediation?
DeMatteis: That’s a great question, Josh. And you know, we take for granted that we do mediation all the time. We are engaged in these mediations somewhat constantly. We mention mediation to our clients, and we expect that they understand what it is, and that’s just not the case.
So, let me give you a little Mediation 101, so that you are a bit more familiar with this process that very well may come up if you are a Connecticut employee that’s involved in a dispute with your employer.
What is mediation? It’s a tool to try to settle your case. And when we say settle, it means to end your dispute. It could be done at any stage of a dispute. There are a number of times when Josh and I settle cases before we file anything in court. We get involved; we realize that there’s an issue between employee and employer; sometimes, we mediate then. Or sometimes, mediations take place after you’ve filed a lawsuit, but well before you’re ready to go to trial. Other times, mediations happen right at the doorsteps of trial – or in any different place in between those three kind of benchmarks that I just gave you.
Who is a mediator? A mediator could be a former judge or a very seasoned legal practitioner. This person comes together with the parties to the dispute and try to resolve it. The mediator, even if it’s a judge, has no skin in the game of this particular dispute. They can’t make any decisions for you. There’s nothing binding about what they tell you. But what they are is a person with a lot of experience, and they can bring that experience to your dispute to tell the plaintiff or the defendant what they might expect if they continue to litigate this case instead of reaching a settlement.
Mediators are paid, and often they’re paid equally by both parties, although there are some exceptions to that. Part of the reason is that we don’t want one party or the other to feel like, “Hey, that’s our guy, or that’s our girl, and they’re gonna make decisions that are more favorable to me because I paid for them.” We like to take that out of the equation as much as possible so that this mediator is a true neutral, and they are there to hear from both sides of a dispute and try to get the parties to a resolution that makes sense. Litigation could be a long, drawn-out process, and there’s a real value to the finality and certainty of settling a case.
So, let’s say your lawyer comes to you and says, “We’d like to try to mediate this case.” What do you expect in that mediation? What you can expect is a one-day proceeding that nowadays is typically happening over Zoom or Teams. Prior to COVID, this was always something that happened in person. Either way, the concept is about the same.
The idea is that we bring the parties together in one day. We have an opening session where the mediator explains their role, the fact that they are a neutral, the fact that they cannot make binding decisions about this case today, and they highlight that they are there to try to help the parties resolve this today, once and for all.
Then the parties split up. We have the plaintiff and their counsel in one room, whether it be a physical room or a Zoom room, and then we have the defendant and their counsel in a separate room. And what the mediator does is they shuffle back and forth between the two rooms. They’re talking about the facts of the case. They’re talking about what’s likely to happen if the case doesn’t settle. They’re talking about the damages and what it might take from either side to really be able to get this thing done. The mediator is trying to evaluate the case from both sides in an effort to make the parties see each other’s point of view a little bit clearer and see the benefit in resolving a dispute like this.
For plaintiffs, this is probably the least formal process or proceeding that they’ll have in litigation. You’re not giving testimony. You’re not under oath. You’re not in front of a judge that can make decisions about your case. There’s not a jury that’s evaluating you. You’re not sitting with the employer that made your life miserable for a period of time. You don’t have to deal with them staring at you all day. Instead, you are really in a safe place with your lawyer for a day, and the goal is to try to get this thing done.
It’s important to know that, even if your dispute does not resolve in a mediation, mediation is still a benefit to you. And the reason is we get a much better understanding of what the other side is saying about your case. Maybe from a factual standpoint, maybe from an evidentiary standpoint, maybe from a damages standpoint. And the more knowledge that we have, the better we can strategize on how to get the most out of your dispute. So, don’t go into a mediation thinking, “Oh boy, if this doesn’t settle today, I’ve failed or I’ve lost something.” In fact, it’s just the opposite. It’s an opportunity to gain knowledge and to put you in a better position than you were, whether or not the case settles.
Like anything else, when you are litigating a dispute, you’re gonna be prepared for this. So, you’ll get a 101 version of what mediation is, similar to what I’m explaining to you now, but you’ll also have an opportunity to sit down with your lawyer and talk specifically about the facts of your case, what you might hear from the other side, and a discussion about what the demand is and maybe what a reasonable settlement range is.
So, when your lawyer mentions this idea of mediation, that’s a positive. And you will be fully prepped going into this, you will know what to expect, and hopefully, this will be an opportunity to settle your case without the need to prolong this process even longer.
Goodbaum: Mediation is such an important tool for us, Amanda, as we try to resolve disputes on behalf of our employee clients.
Thank you for that wonderful introduction. Thank you all for watching. We’ll see you next time.