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 professionals 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 revelations 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 surveillance (and still images), records of jobs the employee could and should have applied for, performance evaluations or even something 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 documents 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.
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 documents at the mediation, the employee can quite sympathetically say they didn’t procure them, but that they will do so for the trial 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 weaknesses of their case and helps the mediator to see those weaknesses. Bring copies of the written requests for documents right to the mediation.
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 reasonable 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.
Conclusion
Mediation is an inescapable part of employment law. It has also become an indispensable tool, because cases do settle at mediation more often than not. This is why it is so important to do your homework before the mediation. By taking these steps, employers 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.