Settling a case allows both sides to “lock in” a definite amount of relief at a definite time, and avoid the expense, uncertainty, and delay of further litigation. Settlements usually occur after each side thinks it has enough facts in hand to understand the strengths and weaknesses of both sides of the case.
Many cases are settled by discussions among the lawyers without using the help of anyone else. Increasingly, however, both sides find it useful to use a mediator – a neutral person – to act as a go-between. He or she helps their discussions, come up with ideas, and persuade themselves and their clients. Here is how it works:
- Both sides agree on a neutral person who will act as the mediator. This might be a retired judge, a defense lawyer, a plaintiff’s lawyer, or some other person both sides respect.
- The mediator can meet with both sides together or separately, or both, to try to help the parties come to an agreement.
- Like a trial, you will ordinarily be there for the mediation of your claim. An official from the employer will ordinarily also be there. The attorneys will also be there.
- Unlike a trial, the focus of the mediation is not so much on the rights and wrongs of the case, but on what is most important to each side.
- A mediation provides an opportunity for each side to talk directly with the other, during the joint mediation sessions.
- Everything said in a mediation is confidential.
- Mediation involves persuasion. It is not like arbitration, which is a system for deciding claims outside of a court, and without a jury.
In addition to taking cases to mediation, I also mediate cases. I helped set up the joint training program between the National Alliance for Education in Dispute Resolution and the Section of Labor and Employment Law. This program trains labor arbitrators who wanted to learn how to mediate statutory employment discrimination cases. I have served on the faculty of several of the training programs, teaching them employment discrimination law.