According to Jeremy Lewin, a labor and employment litigation attorney at Barnes & Thornburg and former investigator and mediator for the Equal Employment Opportunity Commission (EEOC), nearly 70 percent of the cases he saw with the EEOC that attempted mediation ended in a resolution.
Smart Business spoke with Lewin about the benefits of mediation and in what situations it works best.
Why has mediation become so popular over the last 10 years?
Various government agencies are heavily promoting mediation. Congress loves mediation in the federal sector because it’s efficient. Rather than clogging the courts with employment disputes and going through an expensive taxpayer-funded investigative process, there’s an opportunity to resolve a dispute in one setting.
How is mediation better than court?
It’s fast. It’s possible to resolve conflict...that would otherwise take years to resolve in one sitting. In employment law, one of the parties to the dispute is usually an individual person. That person brings emotional issues that can be as important in driving forward with the litigation as the underlying legal issues.
If someone is terminated, the emotional issues can play as important of a role as the legal issues. It’s a less formalized setting that offers an opportunity to present and hear issues from the other side much, much more quickly. You get to the heart of the matter faster.
Also, a mediator can sometimes be a retired attorney or judge and can offer an objective analysis of facts and legal issues surrounding case. And often this is the first time (the parties) have had the chance to hear an objective view of the case.
Otherwise, the first and only chance might be a jury that delivers a verdict. So years before that happens, they can hear from someone not involved in the case what they think.
What is the cost of mediation compared to court?
Typically a mediator might charge a few hundred dollars an hour and you might be able to resolve the conflict in a day. So several thousand dollars can resolve a suit that otherwise might have cost $100,000 in legal fees. That amount varies by case.
What type of cases can best be served by mediation?
Cases where litigation might be long and expensive, where emotions are involved, where nontraditional settlement terms may help a resolution.
In an employment setting, in addition to or instead of money, an employee might want a letter of reference, or in the case of continuing employment, they might want a promotion or change in job title or a raise. That’s another key when mediation can be effective when you have a continuing relationship.
If you have a current employee, litigating a matter can be devastating to a relationship. In a best-case scenario, the mediator can repair some of the damage to the relationship, so things can be resolved in ways litigation simply can’t offer. Mediation really has fewer boundaries as far as what items can be offered in settlement.
Whether or not they made it to mediation, how many cases that you’ve seen would make good mediation cases?
In employment disputes, I would say possibly as many as half. In other areas of law, mediation may be less practical.
But in many areas, it can offer a practical approach. And the settlement rate for cases where mediation is attempted in many settings is very high. It generally happens that day, and often you would execute a contract that same day.
What is the most important key to know heading into mediation?
Come in prepared to do as much listening as talking. Come in with an open mind. Be willing to be flexible. Try to be willing to be creative in terms of nontraditional settlement items.
What traits should companies look for in a mediator?
The most important thing as a mediator is to maintain neutrality, to remember you’re not a judge, to not try to achieve any certain results and not be invested in the outcome of the case. An Israeli diplomat [once told me], ‘Sometimes I’m paid not to have an opinion.’ To some extent, that’s what a mediator has to do. You have to remember your role is to resolve the dispute, or act as a facilitator to the dispute, and maybe even to back off of your own notions of fairness and instead offer both sides objective views.
Jeremy Lewin is a Labor & Employment attorney for Barnes & Thornburg LLP. For more information on mediation, contact him at (312) 214-5661.