How Mediation Works

If you have an employment discrimination claim against the defendant, the defendant might be interested in mediating your claim in an attempt to reach a settlement instead of having to go through trial.

Mediation is a completely voluntary process in which the parties hire a neutral person, usually someone very experienced in employment law, to help the parties resolve their dispute. Mediations usually begin in a large conference room at the office of either the mediator or the defendant’s attorneys. Good mediations usually last all day, beginning in the morning and sometimes lasting well into the evening. Generally, the longer the mediation lasts, the better the chances of settling your claims on terms that are favorable to you.

Keep in mind that just because the other side has agreed to go into mediation does not necessarily mean that there will be a settlement out of court. In fact, there is a good chance that your case will not settle. Sometimes, defense attorneys propose mediation just because they anticipate that you get your hopes up to the point where, if the case fails to settle, you will be so disappointed that you will just give up with your case.

1. Proper attire and behavior. When you go into the conference room to begin the mediation process, you should come properly attired and act professionally. Here are some tips on how you should dress and behave:

  • Dress professionally, as if you were going to court or church. This means a tie and a suit or coat for men and a professional dress or pant suit for women.
  • Be respectful and acknowledge the presence of anyone from the defendant’s side. Shake everyone’s hand and say “hello,” but don’t say anything else. Try not to be too friendly or engage in small talk.

2. The mediator’s initial explanation of the process. You, your attorneys, the defendant, the defendant’s attorneys, and the mediator will be there in the conference room. In the beginning, the mediator will explain the process to everyone and emphasize that:

  1. This is an entirely voluntary procedure. This means that anyone can leave whenever he desires, and the mediator cannot force the plaintiff to accept anything or make the defendants pay anything;
  2. Everything said during the mediation is strictly confidential. This means that no one can tell anyone else what happened during the mediation.

3. Signing documents. The mediator will then generally send around two documents to be signed by everyone present. The first document is simply a sign-in sheet to reflect the identity of each person who is in attendance. The second document merely confirms the confidentiality of the mediation.

4. Opening statements. At this point, the mediator will ask the attorneys to make opening statements, during which you should remain silent and refrain from any rude behavior. Your attorney will go first, and then the defense counsel will speak. After the defense has finished with his opening, the mediator may ask if your side has any rebuttals or anything else to add. Usually, your attorney will have nothing to say.

5. Statements from the parties. Then, the mediator will directly ask you if you would like to say anything. Usually, it’s best that you tell the mediator that you have nothing to say. This is because, despite your best intentions, you may do more harm than good to your case by speaking. If you really feel that you need to say something during the mediation, make sure to discuss this with your attorney well in advance of the mediation. After this, the mediator will ask the defendants the same question: Would you like to say anything? More likely, the defendants will say nothing because their attorneys had advised them not to.

6. “Shuttle diplomacy.” After this, the parties will separate into different conference rooms; you will not likely see the defendant’s side for the remainder of the day. The mediator will then engage in what is known as “shuttle diplomacy”: he will move back and forth between the parties’ conference rooms until either: (a) a settlement has been reached, or (b) the mediator decides that it would be useless to have further discussions.

Remember that mediation can last an entire day, so there will probably be long periods of time when nothing appears to be happening. Be patient; this is a natural part of the mediation process. Note that from time to time, your attorneys and the mediator may exchange jokes or informal conversation; this is because your attorneys are trying to build a good relationship with the mediator. Do not participate in the banter yourself; be sure to remain very serious about your case throughout the mediation.

7. Don’t necessarily settle for the bottom line. At some point before the mediation, your attorney will discuss with you how much money he or she believes the case is worth and will come up with a bottom line. If you are successful in the mediation, the mediator will tell you that the defendants are willing to pay you a certain amount of money that happens to meet or exceed your bottom line. If this happens, you must keep a “poker face” at all times and not let the mediator know that you’re happy with the offer amount. You should not immediately settle for your bottom line amount because your attorney will try to get you as much money as possible. Thus, be careful not to voluntarily say anything! If you have any questions, ask your attorney after the mediator has left the room. If the mediator asks you any questions regarding the settlement amount, just say that you will do whatever your attorney tells you to do. If you don’t maintain this game face in front of the mediator, you may end up receiving a lower settlement. Trust that your attorney knows what he’s doing, and remember that your “bottom line” may change (for better or worse) depending on the information learned during the mediation.

8. Strict confidentiality. Mediation is strictly confidential. This means that you cannot tell anyone about what occurs in the mediation. Even if the defendant admits that he improperly fired you, you cannot tell anyone about that admission; you can’t even use it against the defendant in court. In that same vein, the defendant cannot tell anyone about anything you say, either. Because of this strict confidentiality, you are strongly encouraged not to tell anyone beforehand that the parties are going to mediation. This is because if you do tell others in advance about the mediation, they might keep pestering you about what happened afterwards, and you might be tempted to tell them something. Moreover, if the defendants are interested in settling this case in mediation, they will be no longer interested if they find out that you’ve been telling people that you are going into mediation.