The Advantages and Disadvantages of Mediation
1. Parties participate directly in the process. The main advantage that mediation has over settlement negotiations is that in mediation, the parties directly participate in the process. Settlement negotiations take place between the counsel for the parties. In mediation, however, the parties are personally involved and have the opportunity to hear the other side’s claims without any filtering or distortion by their attorneys or lower-level officials. That means that you have more control over the process, and you and the other party are more likely to be satisfied with the proposed resolution.
2. The limitation of aggressive behavior by counsel that can damage the settlement process. Another advantage that mediation has is that it can dramatically limit or completely prevent direct interactions between the parties’ attorneys, thus eliminating many types of adversarial social behavior that often lead to failed negotiations, such as: a boisterous attitude; exaggeration; aggressiveness; and stubborn insistence on sticking to a position that won’t hold up. Because mediation typically lasts for an entire day, it contains a built-in “cooling off” period in case any improper interpersonal behavior seeps into the mediation process.
3. The availability of creative resolutions. In litigation, one party may only obtain monetary damages (or, in rare instances, injunctive relief, in which the court orders the losing party to do or refrain from doing something). In mediation, however, there is the possibility of coming up with creative solutions that might not otherwise be available in court, such as the following examples:
- If you are a defendant with short-term cash flow problems, you can resolve the case by proposing a payment plan and providing the plaintiff with a stipulated judgment (which is an agreement between the parties that settles the case) in case you miss any payments.
- If you are a plaintiff who’s worried about health care coverage, you can hash out a settlement where you can be allowed to stay on the defendant’s health plan at no cost for a certain period of time.
- If you are a plaintiff who’s worried about getting new employment, the defendant employer can, as part of the resolution, help you by offering outplacement assistance, the use of an office and the assistance of a secretary, and a positive letter of recommendation. Similarly, a defendant may agree to cancel any non-competition agreement that you previously signed.
- If you are involved in a disability dispute, you and the other party can agree to make certain accommodations so that you will be able to perform your job duties.
- If the main obstacle to reaching a resolution is your feelings, the defendant can apologize to you for his conduct.
- You and the other party may agree to keep the proceedings confidential.
- Tax planning may become part of the resolution.
The disadvantages are relatively minimal when weighed against the benefits of mediation. The three main drawbacks to mediation are:
- Mediation is expensive.
- Mediation generally takes an entire day.
- Mediation requires that the ultimate decision-makers (and not just their agents or representatives) participate directly in the process.
When Does Mediation Begin?
Many knowledgeable employment attorneys believe that mediation begins long before the parties actually sit down with the mediator. There are some important decisions that may dramatically shape the outcome of the mediation, such as: (1) who the parties choose as the mediator; (2) how the mediator’s fees are split; (3) where the mediation takes place; and (4) the type of mediation agreed to (hourly, half-day, full day).