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Mediation becomes a progressively more popular way of resolving just about any civil dispute in California in general and in the Sacramento area specifically, especially when it comes to employment and wrongful termination cases, and for a good reason. Mediation is an informal, and usually relatively inexpensive way of finding a resolution through mutual compromise. It's an opportunity for both parties to close the gap through a neutral (the mediator) between what the claimant believes he should settle his case for and what the corporate defendant is willing to pay. The courts all over California encourage the parties to all civil disputes to resolve their case through mediation or some other kind of alternative dispute resolution (such as arbitration).
I believe that picking the right mediator for your employment case is crucial to the successful outcome of your mediation. There are at least three qualities that I am looking for when choosing the right attorney to mediate an employment case:
1. The mediator must be experienced in employment law. Employment and wrongful termination law is a very specialized area of law. The best mediator of injury or business cases might not be the right person to handle a workplace claim. If your case involves allegations of discrimination, harassment or retaliation, it is important that your mediators knows what it takes to prove and defend these claims and what the fair settlement value of your case is considering all the strengths and weaknesses that every employment claim has. Although the attorneys for both parties will draft mediation briefs explaining the mediator the law and the facts from their perspective, it really helps when the mediator can rely on his own experience prosecuting employment cases and on his own research and analysis as part of his efforts to resolve the claim.
2. The mediator must be at least somewhat aggressive. By law, the mediators are "neutrals." They do not have the authority (nor do they usually have the desire) to force any of the parties into a settlement. But many mediators take this neutrality concept to the extreme, acting like messengers. They run from one room to the other, simply delivering the message of one party to the other, and going back to the first party with the response. I very much prefer mediators who are more aggressive. In fact, I encourage a mediator long before the mediation date that I expect them to be aggressive at least with me. If I and/or my client pay $1,000 or more for a mediation, and we hire someone who we believe is experienced in employment law and knows how cases similar to my client's play out, I want the mediator to alert me in a very straightforward way as to the weaknesses of my case that I am unable or unwilling to see due to my bias in favor of my own client. I often go as far as to tell the mediator: "Hey, if you think my clients does not have a case, I want to hear it from you." I am not afraid of disagreeing with the mediator, but I very much appreciated an educated, candid "second opinion." Ideally, the mediator will be at least somewhat aggressive with the opposing party as well.
3. Your mediator must be likable and charismatic. There is no way around it. We like to listen to and we pay attention to the words of those who sound eloquent and persuasive. This plays a major role in elections, in a courtroom and at a mediation. At the end of the day, the parties at the mediation want to feel that they have accomplished something. They want to feel that even if they didn't get the best deal, they got a fair deal at the settlement table. No one can be better at creating that feeling that a mediator that possesses charisma and personality coupled with experience and knowledge of employment law. I have made the mistake of paying $3,500.00 fee to a mediator who had all the ivy league credentials, but whose excessively low key demeanor and a very scholarly approach to the process proved to be very ineffective, and I know that I will not make that mistake again. I learned it the hard way that when it comes to mediators, you don't always get what you pay for.
Your attorney might be very well aware of the qualities that make a great mediator in my view, but it can't hurt reminding him/her that the best mediator for your case should be experienced in employment law, aggressive, and charismatic.
