By Michael P. Fitzgibbon
Positions can become entrenched very quickly in employment disputes.
Although it might appear that the judicial process can right any perceived wrong allegedly committed by the employer, in truth, the judicial process is often inadequate in providing justice to the parties in employment cases.
We are, therefore, fortunate that most employment disputes will settle – at some point. A timely settlement generally serves the interests of all concerned. Once positions harden – as they often do following service of the statement of claim (or other process) – settlement usually comes at a greater cost, emotionally and financially. Mediation, while not a panacea, is well suited to many – if not most – employment issues.
Mediation can arise in different contexts: in civil litigation, under statutes including the Human Rights Code, the Labour Relations Act, 1995 and the Employment Standards Act, 2000, and before labour arbitrators under collective agreements. Mediation can also be used proactively as a litigation avoidance strategy in order to head off potentially costly and disruptive problems at an early stage.
Here are some thoughts on how to use mediation to maximum impact.
Know your mediator
In many cases, a mediator is assigned to the case without discussion with the parties (for example, in human rights and employment standards cases). In other cases, the parties, usually through counsel, select the mediator.
Where the parties choose their mediator, it is important that they do so strategically by considering the mediator’s experience, personality, style and approach and match these to the particular case and the individuals involved.
Some cases (and parties) require a mediator who will act as a facilitator and who will give the parties an opportunity to be heard. In other cases, such an approach is fatal because what is required is a mediator who will “push” the parties to a settlement in a more forceful way.
In the end, though, all mediators should:
- Be an expert in the area of the law
- Take the lead of the parties (and their representatives)
- Provide an honest, direct and consistent opinion about the merits of each parties’ claim or defense
- Offer creative solutions, particularly where positions become hardened or where the settlement is heading for the proverbial ditch
- Push a settlement, but know when to call it a day
Understanding the process
Mediation is a confidential and non-binding process designed to resolve disputes short of adjudication with the assistance of an impartial third party. Mediation provides a venue for:
- Presenting your arguments
- Understanding the other side’s case
- Being heard
- Testing and assessing the merits of your case and that of the other party
- Obtaining the benefit of an impartial third party’s views of your case
- Negotiating a comprehensive, final and conclusive settlement of the dispute
There are many advantages to mediation, including:
- Speed
- Informality
- Cost containment
- Confidentiality
- Reality check
- Having a hand in the settlement
Entering mediation with an attitude of, "I will convince them that they are wrong and I am right," will certainly be met with disappointment and, ultimately, dissatisfaction with the process. What is required is flexibility and a problem solving mindset that looks past “who is right, and who is wrong,” and gets to the heart of the dispute.
The process also requires patience, persistence, broad-shoulders and a capacity to accept and respond to honest feedback about the case. It is also important to accept that mediation is a process that will meander at its own pace. Rushing or forcing the process, though tempting, can prove detrimental to a settlement. Be patient and trust the mediator.
Preparing for mediation
Mediation requires a strategic mindset. Everything that is said, shared or disclosed prior to and during the mediation will frame the discussion and, ultimately, the settlement. It is therefore important to gather all relevant information and documents and prepare a theory of the case that can be presented and returned to during mediation.
Questions will be asked of the parties during the mediation by the mediator and by the other party, and it is crucial that these be anticipated by honestly and dispassionately assessing the strengths and weaknesses of the case and developing a theory of the case that is balanced and stands up to challenge. Reasonable answers to the hard questions are what will fuel the mediation and give the mediator something to say to the other side.
Consider, as well, who should attend the mediation. It can be fruitless to make a phone call at the end of a long day of mediation to someone who has none of the context of the day’s discussions, but who has ultimate authority to settle or not. If the decision maker is not at the mediation, frequent updates should be provided as the day progresses so that, when the call is made, there will be fewer surprises.
The employer should also prepare and rank a range of acceptable outcomes in advance of the mediation, but also be ready to deviate from the plan through creativity and open mindedness.
Conclusion
Mediation makes business sense in most employment cases, but mediation is not appropriate in all cases. Where either or both parties attend the mediation with an expectation of “hitting a home run,” they will usually leave disappointed. Mediation, by definition, requires compromising your best-case legal position in the hope of achieving a settlement that is equally dissatisfying to both parties. Mediation with the right mediator, the correct mindset and a willingness to be flexible and creative can achieve amazing outcomes, even in cases where settlement was thought to be impossible.
Michael P. Fitzgibbon is a founding partner of Watershed LLP, Management Labour & Employment Lawyers.