10 "Knows" Might Get You A "Yes" - Effective Employment Mediation Representation Technique - ABA YLD 101 Practice Series

By Myra L. McKenzie

In today's extremely litigious society, courts, legislatures, and administrative agencies are making heroic efforts to streamline state and federal court dockets. As a result, alternative dispute resolution is increasingly used to resolve conflicts outside of court. Often, companies and courts are looking for a "yes" in response to the following: "Is the matter resolved? Has an understanding or agreement been reached?" Mediation is a forum through which those questions may be answered in the affirmative. To get to that point, however, the parties' representatives must be armed with the information, tools, and tactics needed to make the process successful.

In an employment law setting, effective mediation representation centers on preparation. In fact, six of the following ten recommendations, if accepted, must be followed before mediation begins. The remaining four can be used during and after mediation, but their effectiveness is directly related to the six that precede them. Ten "knows" can: (1) increase the effectiveness of counsel during employment mediations, (2) cultivate good communication and negotiation skills, and (3) assist in responding to the questions posed in the preceding paragraph. In short, if one uses the ten "knows" that follow, one might get a "yes."

Know the mediation's purpose
Not all mediations have the same purpose, and effective employment counsel must determine the purpose before mediation begins. It may be to settle an internal complaint or external charge or lawsuit. Parties may have one outstanding issue in an otherwise finished negotiation. Sometimes, the purpose is not to bring closure at all. It could be to educate the other party about its case's weaknesses or to meet a contractual or administrative obligation before going to court. Whatever it is, you should know it because it determines a lot.

Know the mediator
If you are to be effective employment counsel, you should know as much about the mediator as possible. As you select a mediator and/or prepare to enter mediation, consider the following: What do you know about the mediator's background and current profession? Do publications or a resume indicate expertise in a certain area? What do colleagues say about his or her ability in the substantive area associated with your matter? Do you have reason to believe the mediator is biased against a particular type of party? Having answers to the aforementioned will put you in good stead as you prepare for your mediation.

Know how to craft an effective mediation statement
In employment mediations, your written words may set the stage for triumph or utter defeat. Thus, you must prepare an effective mediation statement. You should strategically determine whether your statement will be strictly informative, devoid of any effort to persuade, or persuasive. As you make that determination, consider any instructions from the mediator regarding statement length and style. Additionally, depending on the nature of the issue and whether the statement is published to the other side, you may also want to include Federal (and usually State) Evidence Rule 408 language indicating that the statement is solely for use during mediation and inadmissible in court.

Know your client
This, like knowing the mediator, seems intuitive, but consider the following: Have you done an appropriate number of interviews and read all known relevant documents? Are you prepared to address any "bad" facts in the mediation? Does the client representative know the corporate strategy and have you spoken to her or her enough to know what's truly important? Are you familiar with the case law that supports your position? Is there a pending case, a certain resolution to which, would equal a win for you? The answers to these questions speak directly to your understanding of your client and help you assess your readiness for mediation.

Know your opponent's case
Someone once wrote that the "best defense is a good offense." If that is true, then knowing your opponent's case is as important as knowing your own. To the extent possible, consider the facts the opposing party will rely on to support its position and be prepared to respond to the assertions. Similarly, be prepared to distinguish case law in your jurisdiction that favors the opposing party. These actions will limit surprises and build rapport with mediator and confidence with your client.

Know your limits
If your goal is settlement, you must know your client's maximum settlement amount. Usually, you will be given this information in advance. This knowledge will help you assess the value of going forward with mediation based on previous settlement offer communications. If you don't know the amount going into the mediation, know who the person with settlement authority is and have him or her present or available within one phone call.

Know how to listen
Active listening is key for employment counsel in mediations. If you listen carefully during open statements, general facts and true interests may surface. Likewise, listen closely during caucuses because the mediator may (in)directly give you key information from the opposing party and point out unrecognized weaknesses in your case. Additionally, your client's actions and/or words may reveal that his or her interests are slightly or vastly different from what you thought initially. This knowledge may indicate the need for a strategy shift and if you miss your cue, you may jeopardize your ability to get to "yes."

Know how (and when) to control your client
During employment mediations, counsel plays different roles. Regardless of what the role is, you have to constantly be aware of how your client's actions affect a mediation's progress. You may have to limit your client's speaking if he or she is angering the opposing party or giving too much information outside of caucuses. At the same time, the client may want to contribute by articulating a Company position. So, you should try to find opportunities for the client to speak. Your client may be able to better articulate a Company policy or procedure than you. So, be cognizant of the control you have and use it to your client's advantage.

Know when to quit/call
Part of being effective employment counsel is properly gauging the true status of a mediation and determining when to end it. You may want to end it if you are rehashing issues and see no position movement or your client is getting tired and/or impatient. Think about ending the mediation before the situation deteriorates to the point that nothing can be done to resolve the matter in the future. Additionally, if you have made a fair amount of progress, the parties may need time to consider the offers made and information gathered. On the other hand, if you are close to a resolution, but lack the authority needed to settle, call the person with authority. Making the call shows the other side your willingness to settle and keeps your client aware of developments.

Know how to craft the final document
Once you conclude your mediation, you still have work to do. Effective representation includes crafting the final document. If you have reached a settlement, offer to craft the settlement agreement. Include payment provisions, full or partial releases of claims, and confidentiality and breach provisions along with any atypical or unique information relevant to your matter. If settlement was not your purpose or you weren't able to get the matter resolved, create a client memorandum or letter outlining what you learned, what the final settlement monetary gap was, explain any duties or responsibilities assumed, and ask for guidance on next steps or offer suggestions. This will help your client feel like the mediation was not totally in vain.

While the aforementioned recommendations are not fool-proof, they form an excellent foundation to assist you in improving your effectiveness as counsel in employment mediation. Case facts and situations may cause you to vary or delete certain steps, but, remember that, as Sir Francis Bacon said, "Knowledge is power." The more of it you have before an employment mediation, the better you will be. Plus, who "knows," you might even get a "yes."

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About the Author

Myra L. McKenzie is an Assistant General Counsel - Employment Practices Division with Wal-Mart Stores, Inc. in Bentonville, Arkansas.

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