Employer’s advantage in negotiating without lawyers

Typically, the first step towards informally resolving an employment-related dispute is either negotiations between the parties themselves (usually with lawyers working behind the scenes for the employer, and less commonly, the employee) or directly between the parties’ attorneys. Generally, the topic of settlement comes up in negotiations when one party has been wronged (usually the plaintiff-employee) or one party wants to terminate the employment relationship (usually the defendant-employer).

If one party brings up the subject of settlement, and the other party does not reject that idea, then settlement negotiations begin between the parties. In the event that the parties are unable to resolve the dispute between themselves, the parties’ attorneys usually step in to try to work things out. Sometimes (especially where the employee is “sophisticated,” or has more knowledge and experience in this matter than a normal person would), the parties skip direct negotiations altogether and go directly to negotiations between the parties’ attorneys. If negotiations fail, the parties then may try mediation as a last ditch measure to resolve their dispute. However, in many situations, it’s best that you as the plaintiff avoid direct settlement negotiations and, instead, use the process of mediation as your primary settlement vehicle.

Why employers have an advantage over employees in direct negotiations

Although direct party-to-party negotiations are the most common form of alternative dispute resolution, they are not necessarily in the best interests of the employee. In fact, the employer has several advantages over the employee:

1. Employers usually have greater “bargaining power” than employees. Employers usually know about the legal rights of the employee and are also aware of the facts that would support or disprove the employee’s potential claims against the employer. Employees, on the other hand, rarely have this kind of complex legal knowledge. Thus, employers often know when they have violated their employee’s rights, whereas the employee might only generally know that he or she has been treated “unfairly.” In addition, the employer usually has significantly greater financial resources than the employee and thus has the greater capacity to fund and survive litigation. These two facts mean that the employer has greater “bargaining power” than the employee and thus can have an upper hand in negotiations.

2. Employers typically have greater control over witnesses. Employers usually either employ all of the eyewitnesses or, with regard to former employees, have them sign contracts prohibiting them from disclosing work-related information or assisting those with potential claims against the employer. As a result, eyewitnesses may be hesitant to take any action: for current employees, doing so may threaten their employment or income, and for former employees, doing so may subject them to a legal claim against them by the employer for breach of contract.

3. Employers usually possess all the documentary evidence. Employers typically have possession over all the documentary evidence, and they are able to access the employee’s computer in order to search for information to use against the employee.

4. Employers have ready access to their lawyers. Because most employers have ready access to employment counsel, these attorneys will play an important (but unseen) role in the direct party-to-party negotiations between the employer and employee.

5. Employers take advantage of the fact that employees are hesitant to hire lawyers. Many employees fear that if they hire an attorney, they will actually recover less money with an attorney (because a significant percentage of any recovery goes toward attorneys’ fees) than if they resolve their differences without an attorney. The employers, who are the more sophisticated party, take advantage of this fact to maintain their upper hand over employees.

Most employees know that their employers have the upper hand when it comes to employment discrimination disputes; this is why they are sometimes willing to compromise their claims for significantly less than what their claims are actually worth. This is why it is important for you as the employee to hire an attorney