Diverting the juggernaut: how employment lawyers can succeed through mediation

Runaway truck ramp: might you need one?

In Mediation: what’s in it for employment lawyers? we discussed how using mediation can help employment lawyers succeed in developing existing and new client relationships and building their practices.

But we also saw that there are gravitational forces pulling the most difficult disputes towards litigation.

To divert those forces, my top suggestions for employment lawyers are to develop the following habits:

1. Clearly flag up mediation as a possible future option with clients at the start – even with clients who may be reluctant to consider settlement; and even in situations where you’re confident of negotiating a resolution without needing mediation.

2. Focus on the future (even though the litigation process is dragging you back into the murky waters of the past).

In assessing the risks and opportunities with your client from the start, consider not only technical strengths and weaknesses but also future factors such as:

• health and well-being, especially mental health, of those involved;

• gain (or loss) of time and opportunities to focus on other issues;

• impact on reputations;

• future career issues (for individuals)

• future employment relations issues (for organisations); and

• financial costs.

3. At the start of any settlement negotiation, flag up mediation as a possibility with your opponent, as a matter of routine “just in case” you’re not able to resolve the situation between you.

4. Plan ahead: schedule future stages in the process when you’ll reconsider mediation as an option; include mediation in your cost projections and your strategic plans; and share them with your client.

These simple flagging up and strategic steps will enable you to turn towards mediation – naturally and smoothly - if and when you need to. If you don’t need to, that’s great. If you do, you’ve already prepared the "runaway truck ramp".

Early-stage flagging up with your client and opponent also plants the seed in their minds. This potentially frees up a path for them to propose mediation at a later stage, even if they adopt it as their own idea.

So, to divert the juggernaut and create rampways towards successful mediation: flag up early, focus on the future and plan ahead!

For more tips on mediating employment disputes, see the imaginatively titled : Ten tips for mediating employment disputes.

Photo: detail from original, courtesy of Bidgee, CC BY-SA 3.0 AU https://creativecommons.org/licenses/by-sa/3.0/au/deed.en , via Wikimedia Commons