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How to “Win” at Mediation
EMPLOYERS NEED TO BE PREPARED IN ORDER TO COME OUT ON TOP
By Michael Mazzuca
It’s sometimes said that mediation has no winners. It’s not true.
Mediation is rarely all or nothing, but that doesn’t mean that
one side doesn’t win. How do you “win” a mediation? As with
many things in life, winning at mediation comes from doing
your homework. By following the five key steps below, HR profes-sionals
can win before they even set foot in the mediation room.
BUILD YOUR CASE
If a case is going to settle at mediation anyway, isn’t it best to go to
mediation as soon as possible and avoid further legal fees and staff
time? Not necessarily. Going to mediation before gathering all the
key facts can actually increase the overall expense. Employers who
haven’t gathered enough information can be surprised by revela-tions
on mediation day or only come to understand the employee’s
case for the first time that day. Then there is no settlement at the
mediation because the employer needs to research its response
and potentially get new settlement instructions from key decision-makers.
This is a mistake that can waste thousands in legal fees
and ruin the best chance at early resolution. If there is a resolution
at mediation, it can be much more expensive than it had to be. Not
gathering the evidence against the employee can mean a missed
opportunity to push back against the employee’s claims.
SHOW OFF YOUR CASE
Putting the case together is only the first step. The best parts
of the case should be assembled in an effective mediation brief
and sent to the employee and the mediator. Powerful documents
might include written statements from witnesses, video surveil-lance
(and still images), records of jobs the employee could and
should have applied for, performance evaluations or even some-thing
as simple as a written bonus plan. Sometimes a past court
or tribunal decision can show the employee that their case is
weak. Whatever the documents or records are, put it in the docu-ments
themselves. Saying “the employee’s evaluations were poor”
is weak. Showing the poor evaluations themselves is strong. Let
the mediator see that she needs to do most of her work in the
employee’s room, and give her the tools to paint a demoralizing
picture for the employee.
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HRPROFESSIONALNOW.CA ❚ MAY 2017 ❚ 13