It was Abraham Lincoln who said that “A good settlement is better than a good lawsuit.” After our last briefing report on the escalating costs of litigating a personal grievance, we had several queries as to how to get the best results from mediation. The purpose of this article is to help you to get better results by identifying how cases can be resolved earlier and easier than you think.
Either MBIE or a private mediator can provide mediation services. The advantage of MBIE is that it is free and mediation may be achieved by telephone, fax, e-mail or face to face meetings. What is really important is that it is confidential and without prejudice, so you can have those 'hard' conversations.
Have discussions prior to the mediation
Investing a modest amount of time in advance of a mediation will greatly increase the potential for a good outcome. The more you put into the process early on, the better the results you will achieve.
Some preliminary communications with the other party, before mediation, are greatly recommended. Attempt to have an informal discussion, to agree on the facts and explore possible early solutions. Too often there is an assumption that mediation must occur in order to learn what the other party's case and demands are. Avoid any concessions being used later by stipulating in advance that anything discussed at the pre-mediation stage is to be on a 'Without Prejudice' basis - not to be used for any purpose other than the mediation. If the other party will not talk - you have the upper hand by having indicated your willingness to talk.
Many a matter is settled before mediation, by the simple exchange of cordial and constructive communication. These can be committed to a binding MBIE Settlement Agreement, outside of mediation, allowing for resolution of all matters. This allows the Employer to move forward with their main focus which is that of running their business.
Preparation if pre-mediation fails
All sides to a dispute need to gain something for a mediation to be successful. Mediations provide that moment in time before litigation. They allow the employer to advance their position to their adversary and come to a final resolution of the dispute - even if that has to be a commercially expedient decision to cut your losses there and then, and settle even if you have done 'nothing wrong.'
Make sure all your paperwork is together and file a written brief for the mediator. This is the opportunity to inform the mediator of your position, and advises the mediator upfront what issues are common cause and what are not. It may be that you advise the mediator that your preference is a negotiated exit; this will make the mediator concentrate on your expectations, as the mediator can take a “common sense” approach, reducing unnecessary legal work and expense, and reduce the potential for disappointment and unpleasant surprises.
The mediation
Often the party with the authority to settle the case does not attend the mediation. This causes a lack of credibility with respect to the ability of your representative to settle the case and derails the negotiation process. An option is to have the decision-maker available to confirm settlement by telephone, if you simply cannot attend.
The best option is to mediate face-to-face. Many times, due to animosity that has arisen out of the preceding process, the parties refuse to speak to each other directly. This is a mistake as the opportunity to explain one’s position is an integral part of the mediation process. Often, the break through is in those coal-face interactions.
Mediation is intended to be a “time-out” from litigation and should be treated as such. In your opening statement say: “For today’s purposes – and for today’s purposes only – we are not going to contest liability.” In this way, the employer can try focus the discussions solely on outcomes rather than counterproductive venting about the havoc and the injustice of it all. Most importantly, acknowledge the strengths in your position by acknowledging your weaknesses, without fear of ultimate admission or compromise because all is done within the safety of the mediation process. This attitude allows you to convey intangibles – beyond the factual/legal arguments – directly to the opposing employee. The goal of mediation is not to win an argument; it is to achieve a favourable settlement. And many a settlement has not been about the money - but rather about the acknowledgement of a failed process. It is also notable how valuable a genuine apology or an Employee Reference is to an aggrieved employee.
Last Minute Surprises
Significant progress, where the parties believe that a deal has been struck and that a settlement in principle has been achieved, can be derailed when one side interposes a condition which may be standard operating fare for one party - particularly large corporations or insurers - such as the need for payment over time, unresolved expense claims. The path to avoiding this encounter is simply that Employers should place any such conditions on the table at the start of the mediation session - or at that pre-mediation communication I recommended before.
When mediation fails
While the majority of disputes resolve at mediation, there nonetheless remain those that impasse. The failure flows from individual factors unique to each matter at hand. The reality is that 80 per cent of matters do settle either before or at mediation. Don't be afraid to walk away - or even raise mediation as a possibility again before you start litigation. Many a case is settled on the courtroom steps.
Comments