How Much Should You Pay for Mediation?

If you are the plaintiff to a claim and you decide with the other party to use a private mediator, who will pay for mediation? There is no simple answer to this question. Lawyers for the defense will always try to make you pay for half of the mediation costs as a way to prove that you’re “committed to” or “invested in” the mediation process.

Sometimes, the plaintiff’s employment discrimination lawyers will actually agree to the defense counsel’s demand, partly because they buy into this argument and partly because they want to prove to the defense that they’re willing to spend as much money as necessary to go the distance with the plaintiff’s case. They also believe that negotiating over the mediation fees sends the wrong message to the other side and might suggest that they don’t have the financial resources to take the case through trial and any necessary appeals.

In most instances, however, you should disregard this advice and refuse to pay for half the mediation fees. This is for two reasons:

  1. First of all, it’s unfair for you, as the plaintiff-employee, to pay the same amount as the defendant-employer, who usually has an exponentially greater amount of financial resources than you do.
  2. Secondly, taking on half the costs of a good mediator will put too much pressure on you to resolve the matter in order to pay for the mediation costs, even when the settlement offer isn’t fair. Moreover, agreeing to pay half of the mediation costs may send the wrong message to the defense: it might get the idea that you are too eager to resolve the matter and will accept a lower settlement proposal than what might otherwise be the case.

Instead of agreeing to pay half, consider offering to pay:

  • Nothing. This is obviously the best proposal for you as the plaintiff, but the defendant will generally only accept this in three situations: (1) if you literally cannot afford to pay anything toward the mediation (for example, if you are a single parent and a low wage earner); (2) if you have a slam-dunk case; or (3) if the defendant wants to avoid bad publicity. If the defense is hesitant to agree to this proposal, you should consider agreeing that if the defendant pays the entire costs of mediation, you will not leave the mediation until excused to do so by the mediator. This offer might relieve the defendant’s concern that you might walk out of the mediation early in the day.
  • A nominal amount. An offer to pay a nominal, or small, amount (such as $250 or $500) is both fair and effective. It is fair because the defendant-employer has much more financial resources to draw upon than you do. It is effective because it directly addresses the defendant’s supposed concern about you being “committed to” or “invested in” the mediation process.
  • A proportionate share based on the number of parties. An offer to share a proportionate share of the mediation costs (where each side pays based on the number of parties it has) often works to your advantage when there are a number of defendants (for example, a corporation and individuals). This means that if there are three defendants, you only pay for one-fourth of the costs of mediation. This also makes sure that you show that you are “committed to” or “invested in” the mediation process.
  • Half, but only if the matter is resolved in mediation. This is a good fall-back position if none of the above proposals works.
  • Half, but nothing if the matter is resolved in mediation. This proposal is better than just agreeing to pay half.