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Mediation, Mediated Settlement, in employment cases
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Hey defense lawyers: Push your clients to mediate – It’s the opinion of the author that hourly fee defense lawyers should do more to encourage their clients to mediate employment disputes at the earliest opportunity, because mediation has been so successful in resolving employment problems. In my opinion based on experience, hourly fee defense lawyers tend to ride the gravy train and soak their clients for fees keeping disputes alive, when the disputes could be resolved so easily at early mediation. I talk more about this phenomenon in my article giving Tips for businesses regarding employment issues. Maybe many of these defense lawyers lack enough exposure to employment mediation. But whatever the reason, it’s tough to get an employment case mediated unless the court actually orders it, despite the high success of mediation in ending disputes reasonably.
“Mediation” is a long meeting between the parties and their lawyers, assisted by a “Mediator” who is a neutral go-between, where the purpose of the meeting is to reach a settlement and end the case. In employment cases, the mediator is most often selected by the parties, and is usually a local lawyer who has experience in employment law cases and is well-regarded for his or her skills at getting the combatants to see the light of reason.
Mediations are usually conducted at the office of the mediator. The setting is usually a conference room (for joint meetings) and two regular offices where the parties can caucus in private.
Mediations usually start with a joint meeting of all the participants, where you all get to know one another a little bit, and you all get to discuss your legal positions. Then the joint meeting adjourns, and the parties break out into private sessions in their offices. The mediator visits each office separately and discusses the case in detail with you. The mediator might point out the strengths and weaknesses of your legal position, based on his or her experience with such cases.
Eventually, the mediator starts to talk about what the parties might require to settle the case. This is usually where money starts getting talked about. As long as the parties are being reasonable, and as long as progress toward a resolution is being made, the mediation continues.
It’s common for mediations to last the entire workday if an active lawsuit is being settled. It’s also common that the little nitpicky details of settlement are not completed at the mediation, even if a general settlement agreement is worked out during the mediation. It commonly takes some weeks to finalize the settlement contract and perform the acts that must be done to complete the settlement.
In a court-ordered mediation, the parties are responsible for paying the fees of the mediator. Mediators charge a lot of money, but they are worth it. Better mediators charge even more money, and they are worth it as well. Fees might range from the occasional $125 /hr or so for new mediators who are still building their reputations (I’ve not used one of those yet) all the way to $250 /hr or more for experienced mediators whose skills are well regarded. Good mediators are worth every penny. It’s quite common that the settlement will provide for payment of the mediator’s fees by one party or the other.
The EEOC mediation process works differently in some important ways and does not cost the parties anything. Jump to the section below on EEOC mediation.
It’s a fact of life in employment law that most cases are going to settle, because the risks of going to court are high, and most cases are not going to result in big damage awards anyway. But the cases are still going to take an enormous amount of time and money, for both the plaintiff and the defendant, and so it makes good sense to try to get the cases resolved outside of the courtroom. See my article on The pros and cons of litigation for more information.
The Federal Courts report that just over 50% of active employment lawsuits settle at the mediation.
In the Federal Courts here in the St. Louis area, the judges actually order that mediation occur and give a deadline for accomplishing the mediation. If you don’t mediate, you’ve got some explaining to do to avoid a contempt of court problem.
The Missouri State Courts do not, as of this writing, “force” the parties to mediate. The courts should force the parties to mediate, and maybe one day soon things will change. The Federal Court judges are very happy with the forced mediation process, and lawyers like it as well, and clients like it too. If everyone affected by mediation likes it, and if it clears the court dockets of lots of cases, then it makes good sense and should be required in almost all cases. But no matter whether the court requires mediation, the parties are free to arrange their own mediation at any time.
In many instances, the EEOC will attempt to get the ball rolling on an early resolution by offering the parties the chance to sit down and talk about a settlement, at a mediation. Employees are usually willing to mediate. Companies usually decline; actually, companies almost always seem to decline in my experience, and I speculate that perhaps their hourly-fee-earning defense lawyers are not encouraging the companies to mediate.
Even in those cases where the parties do agree to come to an EEOC mediation, most of the time expect only a relatively small settlement to be available. There are exceptions of course. For many people, a token settlement is appropriate and is the best they can hope for. For others, with stronger cases, a token settlement is inappropriate. It’s all case by case. Remember that the typical EEOC claim is quite weak, at least at the early stage where mediation is offered. Companies have a hard time justifying a big settlement if your claim appears (for technical legal reasons) particularly weak.
The EEOC mediation process starts with the EEOC sending a letter to the parties offering the chance to mediate. If both parties agree, then the EEOC arranges the mediation. The mediator is either an EEOC employee or a local lawyer working on contract with the EEOC.
The parties will meet at a specified location and will spend 1 hour to maybe 4 hours together. It’s possible that the mediation can last longer than 4 hours, but that’s not encouraged in my experience at the EEOC level. As long as progress toward a resolution is being made, the parties can stay and talk, assisted by the mediator who serves as a go-between. But the EEOC mediator will probably apply some pressure to end it after 4 hours.
The parties might, or might not, have their lawyers with them. If plaintiff does not have a lawyer, maybe the company will choose not to bring its lawyer. The parties learn something about each other’s evidence and attitudes. Then they talk about settlement. Sometimes employees face a small team of supervisors, witnesses and Human Resources employees. Sometimes it’s just the company lawyer and a manager.
In conclusion, consider trying the EEOC mediation process if it’s offered, but don’t get your hopes up too much, particularly if you don’t have a lawyer.
The parties to a legal dispute can choose to mediate any time they like, at their whim. No law stands in their way, and the judge will probably even agree to modify court deadlines to permit the parties some time to mediate.
Even if the first mediation fails, the parties can go to a second or third mediation if they choose.
Some lawyers might not push their clients to mediate unless the judge orders a mediation. But the clients can push the lawyers to arrange a mediation. The lawyer works for the client. If the client wants to try to settle the case and cut off the pain of paying attorney fees, then the client can very easily tell the lawyer to get the other party to come to the mediation table. Most employment plaintiffs would agree to mediate if the defendant requested mediation. For practical purposes, the defendant controls whether any money gets paid in the case, and so the defendant determines whether a voluntary mediation will occur. If the defendant wants to voluntarily mediate, it would be a rare employment plaintiff that refused.
Mediation works, and works well, especially for most employment cases, where a reasonable and modest settlement may represent your best chance at getting any justice at all. As they say, a bird in the hand is worth two in the bush.
Maintained by Attorney Phil Willoughby
Founded by Tim Willoughby, Esq. (1959-2013)
Phil is a Missouri employment lawyer who is licensed to practice in Kansas and Missouri, and primarily takes cases in Saint Louis and Kansas City. He is a member of the Missouri Bar Association and Kansas Bar Association. Additionally, he has practiced in the United States Federal Courts of Missouri in St. Louis and Kansas City. He has also practiced in the Kansas Federal District Court in Kansas City, Kansas.
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