Mediation, in the formal legal sense, has been with us now since the 1970s though it became universally accepted as a means to lawsuit resolution in the 1990s. We now find most legal disputes are ending in mediation rather than trial. In Employment Law disputes however, the conflicts between the parties generate a great deal of anger making them more difficult to resolve.
In a January/February 1990 article in the Harvard Business Review, article “Five Ways to Keep Disputes Out of Court”, author John R. Allison explored the main alternate dispute resolution techniques. About mediation, Allison said:
“In the course of an actual mediation, a good mediator might do every one of the following things, in roughly the following order: urge participants to talk to each other; help them to understand the nature and objectives of mediation; carry messages; help the parties agree on an agenda, or, failing that, set an agenda; provide a suitable environment for negotiation; maintain order; help disputants understand their problems and the source of their conflict; defuse unrealistic expectations; help participants develop their own proposals; help them negotiate; suggest solutions; and, finally, persuade them to accept a specific resolution.”
Allison is correct that most importantly, and most difficult, is to get the participants to talk to each other. In the Employment Law context, the ability to focus on the issues that the US Supreme Court, the 5th Circuit and each judge will find important is a challenge. Each side will want to gain catharsis through venting; then focus on the matters that get the parties to resolution.
As Allison continued: “Pretrial discovery and other litigation procedures are designed to leave no stone unturned in the search for relevant evidence. By training, temperament, professional duty, and frequently by client expectation, attorneys tend to exploit these procedures to the fullest and to persevere as long as any hope remains. In fact, each lawyer has an obligation to be as zealous an advocate as possible, even—sometimes especially—to the detriment of discovering the truth and of resolving conflicts to the satisfaction of both parties.”
In mediation, the parties can set down the artillery of battle, stop the fight for a few moments, evaluate where they see the litigation taking them, take charge of the process and resolve. This is important for employers whose desire is to get back to the work that keeps its employees and their families satisfied. This is important for employees who need both closure and justice and to be able to get back to their lives.