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.
EXPOSE THE EMPLOYEE’S WEAKNESSES
Asking the employee for documents in advance of the mediation
can be a powerful step. These might be medical records, job search
records or witness statements. If the employer asks for these doc-uments
at the mediation, the employee can quite sympathetically
say they didn’t procure them, but that they will do so for the tri-al
or hearing, as required. But if the employer asks in advance, the
failure to produce the documents is effectively an admission that
the employee either can’t get those documents or that they are
not flattering. This forces the employee to confront the weakness-es
of their case and helps the mediator to see those weaknesses.
Bring copies of the written requests for documents right to the
LOOK READY TO GO ALL THE WAY
Most employment cases settle. Everyone knows this, employer
and employee alike. At some level, many cases resemble a game
of chicken. Cases settle for more than the employee’s true bottom
line because the employee correctly guesses that the employer is
not prepared to go to a hearing as long as there is a remotely rea-sonable
deal. Make that guess harder for the employee. Give all
the signs of intending to go through with a hearing. Schedule the
next step in the litigation, such as an examination for discovery.
Take steps that may not be required until after mediation, such as
providing a full document brief or a witness list. Through actions
signal that the employer does not see the mediation as the end of
the road. Ironically, this will help make sure the case does settle at
mediation, and settle on favourable terms for the employer.
Mediation is an inescapable part of employment law. It has also
become an indispensable tool, because cases do settle at media-tion
more often than not. This is why it is so important to do your
homework before the mediation. By taking these steps, employ-ers
can shape the mediation, ensuring it is effective and bringing
the best possible resolution for the employer. And that’s a win. ■
Michael Mazucca is a partner at Rousseau Mazzuca LLP.
14 ❚ MAY 2017 ❚ HR PROFESSIONAL