| To the Employer Representative from Tom Harper: |
It may come as a surprise but the chances of resolving your dispute through mediation are over 70%! There are a number of reasons why mediations are so successful. One reason is that mediation gives you an opportunity to participate in how the case is decided. You will decide if the resolution is something that is best for your company and if it is something that you can live with.
After mediation, as the case goes on to be presented to a judge or a jury, others will be making decisions for you. If the matter is not resolved through mediation or the settlement process, you will not be a decision maker. Instead, you (or your attorney) will only be able to argue and present facts, evidence and witnesses to the decision-maker (usually a judge or jury). There is a chance that a judge or jury will be influenced by some information that you place little importance on.
With mediation, the great advantage that you have is that you will decide how your case will be resolved. No one else will be making decisions for you. When you reach a resolution at mediation, you will also be controlling when the case ends. Remember that even if a judge or jury rules in your favor, an appeal to a higher court is possible. Appeals can take from 1-4 years. |
| QUESTIONS TO ASK: |
| You should also consider whether or not there is an important “issue” or “principle” at stake. With an employer who may have dozens or even hundreds of employees, there are principles that are worth fighting for. There are also many employment cases that are not important to the big picture of the employers’ business. As an employer, you should weigh the time and resources of your business against the value of defending events that happened months or even years in the past. Ask yourself, “What will victory look like?” “What could losing mean?” Will the defense of this issue translate to an improvement in the bottom line of the business? |
| A Common Concern: “Can a Resolution be kept Confidential?” |
| Yes. As an employer, one of your main concerns may be in preserving the confidentiality of any resolution that you reach with a current or former employee. This is a legitimate concern that most employers have. A resolution can address these concerns by including in the resolution some clear language that the terms of the settlement will be kept confidential. Your lawyer will explain how this can be accomplished. |
| The Process: |
Every mediation and every case is unique. However, I will usually begin the mediation with both parties in a joint meeting. I will explain the mediation process and what I anticipate happening during the day. I may describe rules that I will expect the parties to follow. Then I will turn to the employee/plaintiff and give his or her lawyer a chance to tell their story. After the employee’s story is heard, I will ask the employer to tell their story. When this is finished, I will normally place the parties in different rooms and will work back and forth between the parties. This begins a process of gathering information, clarifying interests and generating options.
One purpose of a joint meeting between the parties is to give each side an opportunity to hear the arguments that will be made by the other side when the case goes to court. I may ask questions about your position and how certain facts and events will be portrayed at trial. These are questions that a judge or jury may be asking or thinking as your case proceeds through trial. These are questions that you and your lawyer have probably already thought about, but when you hear an outside neutral ask these questions, it may give you a different perspective to evaluate how others may view what happened in your company.
One of the goals that you should set for the mediation is to listen to help you evaluate your chances of success before a judge and jury. That evaluation and judgment, which is usually jointly reached by you and your lawyer, plays an important part in evaluating what you would likely see as a result. |
| What Mediation Is Not: |
| A mediator is decidedly not a judge. No one is going to rule on or decide the case at mediation. I will not be telling you what I think about your case or tell you how I think a judge or jury will rule. I will not predict what I think will happen when your case reaches a judge or jury. Mediation is a voluntary process. Even though this mediation may be court ordered, no one will or can force you to agree to do anything. I am an experienced employment law litigator. I have already determined that I have no “conflict” or interest in any of the parties or the outcome. I am a neutral facilitator and my role is to remain impartial through the process. |
| Who Should Attend: |
| Mediation requires that each party have a representative who has authority to resolve the case. I will insist that the employee/former employee have full authority to resolve the case. I will expect the same from you. If there is someone that you will need to review the case with, you may want to make arrangements so that this person will be available by telephone during the mediation. |
| Do I have to worry about what I say during the mediation? |
All that occurs during the mediation process will be confidential and may not be revealed in any subsequent legal proceedings. All parties agree not to institute any actions based on the mediation or to testify or produce any records concerning what happened at the mediation and any future proceedings.
The parties are required not to make any public statements concerning the mediation. All inquiries from the news media or other interested parties should be directed to me. If contacted, I will only acknowledge the existence of the mediation and report that the parties are attempting to negotiate an acceptable resolution to the dispute.
The entire mediation process is confidential. All offers, promises and statements whether oral or written made during the course of the mediation, by the parties or their attorneys, will be confidential. Offers, promises and statements will not be disclosed to any outside persons and the mediator will only disclose your statements and comments to the other side with your permission. |
| How does the process work? |
| As I meet and discuss the case with each side, I will be listening for the issues that will be important when the case is tried. My role will be to assist the parties in identifying the issues, fostering joint problem-solving and exploring resolution alternatives. I will be listening, focusing and asking questions to try to determine what the parties really want. What are their concerns? I will explore what the parties are seeking through the litigation to see if there is a resolution available that is satisfactory to both sides. I will also be trying to come up with creative ideas that might meet the different interests of the parties. Part of the process will be for the parties to select and assess different options. In addition, I will be looking for objective criteria or standards that can help both sides figure out what is a fair resolution. |
| How long will mediation take? |
You should plan on and come prepared to devote the entire day. That may sound unnecessary but, in my experience, employment mediations require more time than other types of mediation. It is true that the mediation of a personal injury or a workers’ compensation case can often be resolved in 2-4 hours. Not so with most employment mediations. Rarely have I have seen an employment mediation resolved in less than a full day. This case may be different and let’s hope that it is. What I observed, however, is that employment cases have more emotion than other types of cases. For this reason, employment cases often contain feelings that the parties need time to express and digest.
I have set aside the entire day to discuss the resolution of this matter. During the process it may seem like I am spending an inordinate amount of time with the other side. Don’t read anything into this or think that I am not giving your side of the case a fair hearing. Instead, I may just feel that more time is needed to work with the other side. |
| What I ask of You: |
I will ask that each party make an effort in good faith to reach a resolution. I will ask that you keep “an open mind” and “remain receptive” to what you hear during the process. Over the years I have negotiated many collective bargaining agreements (union contracts). Emotions often run high during the process. At the end, however, if one side leaves the table completely happy, this usually means that the agreement is one-sided. As we approach mediation, I hope that you will consider that you may not get everything that you want. Remember also that in almost every case each party’s satisfaction depends to a degree on making the other side sufficiently content with the agreement so that they will want to live up to the agreement.
This letter complies with Rule 10.420 of the Florida Rules for Certified and Court-Appointed Mediators. If you need any special accommodation or special foods while at our offices, please let me know. I do not want any distraction to lessen your focus during our sessions.
I am confident that a resolution of your case can be reached on terms that you can live with. I look forward to meeting and working with you. |
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G. Thomas Harper,
September, 2009 |
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