Suppose that you are the HR manager for a company. The judge in a current law suit by a former employee has ordered mandatory pre-suit mediation. Your boss is unfamiliar with mediation and she asks you to advise her as to several issues regarding the upcoming mediation. Draft a memo thoroughly discussing, at minimum, the following questions:
What are the advantages and disadvantages of mediation? Is it likely to be successful? Is it likely to make the parties more or less hostile toward one another? How do the costs in terms of time and money compare with litigation?
If your boss has no interest in mediation, does she really have to be there? Can she send her attorney instead? If so, are there any conflicts of interest with respect to attorney advocate representation of which she should be aware?
Must the company actually participate in the mediation? Can your boss (or her attorney) just sit there and refuse to speak?
If your boss (or her attorney) does decide to engage in dialogue during the mediation, what are the risks concerning information that might be disclosed? If the mediation fails, can the former employee use such information at trial?
Full Answer Section
Advantages and Disadvantages of Mediation
Mediation is a voluntary process in which a neutral third party helps two parties resolve a dispute. The mediator does not make a decision for the parties, but rather helps them to communicate and negotiate a mutually agreeable settlement.
Advantages of mediation include:
- It is typically faster and less expensive than litigation.
- It can help to preserve the parties' relationship.
- It gives the parties more control over the outcome of their dispute.
- It is confidential.
Disadvantages of mediation include:
- It is not guaranteed to be successful.
- If the parties are unable to reach an agreement, they may still have to go to court.
- There is a risk that one party may try to pressure the other party into agreeing to a settlement that is not fair.
Likelihood of Success
The likelihood of success in mediation depends on a number of factors, including the willingness of both parties to settle, the complexity of the dispute, and the skill of the mediator. According to the American Bar Association, the overall success rate of mediation is about 80%.
Impact on the Parties' Relationship
Mediation can have a positive impact on the parties' relationship, especially if they are able to reach a mutually agreeable settlement. Mediation can help the parties to communicate more effectively and to understand each other's perspectives. It can also help to reduce hostility and resentment.
However, if the parties are unable to reach an agreement in mediation, their relationship may suffer. The mediation process can be stressful and can highlight the parties' differences.
Costs Compared to Litigation
Mediation is typically faster and less expensive than litigation. The cost of mediation varies depending on the length of the mediation and the experience of the mediator. However, it is generally much less expensive than going to court.
Must You Attend Mediation?
Whether or not you must attend mediation depends on the order issued by the judge. If the order states that mediation is mandatory, then you must attend. However, if the order states that mediation is voluntary, then you can choose not to attend.
Can You Send Your Attorney Instead?
Yes, you can send your attorney to mediation instead of attending yourself. However, it is important to be aware of the potential for conflicts of interest. Your attorney may have a different interest in the outcome of the mediation than you do. For example, your attorney may be more interested in reaching a settlement quickly, even if it is not the best settlement for you.
If you choose to send your attorney to mediation, you should discuss your interests and goals with your attorney in advance. You should also make sure that your attorney understands that they are representing you, not themselves.
Conclusion
Mediation can be a valuable tool for resolving disputes. It is typically faster and less expensive than litigation, and it can help to preserve the parties' relationship. However, it is important to be realistic about the likelihood of success and to be aware of the potential for conflicts of interest if you choose to send your attorney to mediation instead of attending yourself.
Recommendations
I recommend that you attend the upcoming mediation. Mediation is a good opportunity to try to resolve the dispute without having to go to court. It can also help you to understand the other party's perspective and to build a foundation for a future relationship.
If you choose to send your attorney to mediation instead of attending yourself, be sure to discuss your interests and goals with your attorney in advance. You should also make sure that your attorney understands that they are representing you, not themselves.
Sample Answer
Memorandum
To: Boss From: HR Manager Date: 2023-09-24 Subject: Mediation in Lawsuit
Introduction
The judge in a current lawsuit by a former employee has ordered mandatory pre-suit mediation. You have asked me to advise you on several issues regarding the upcoming mediation. This memo will discuss the advantages and disadvantages of mediation, the likelihood of success, the potential impact on the parties' relationship, and the costs in terms of time and money compared to litigation. It will also address your questions about whether you must attend mediation and whether you can send your attorney instead.