Mediating a Wrongful Termination Claim

One of the most common ways in which wrongful termination, discrimination, harassment and other employment related claims are resolved is private mediation.  Mediation is an informal conference between the parties who submit their case to the mutually agreed upon third-party neutral evaluator - usually an experienced attorney in the subject area of law who also works as a mediator or a former judge, experienced in presiding over employment and wrongful termination cases. 

The mediation hearing itself usually consists of a brief face to face meeting where the mediator might listen to a brief opening statement from the employer and the employee, after which the mediator will separate the parties into two different rooms and will basically go back and forth from one room to another, trying to convince the parties to compromise by moving closer to each other's position. The mediator will point out to the employer why their settlement offer is too low considering the evidence and the risks they are facing if the case is not settled, and will also try to persuade the employee that his expectations are too high in light of the weaknesses of his or her case. Usually, the parties start quite far apart from each other in terms of settlement figures but throughout the day, they make small steps toward each other and hopefully, at the end of the process they manage to agree on a settlement number. As a result, this hearing can last anywhere between 3 hours and all day or even longer, and it's not uncommon for some of the best mediators to not let the parties leave the negotiation table till the late hours of the night.

The three main advantages of mediation are as follows: 

First, mediation is a great opportunity to get an objective and invaluable opinion from a mediator who used to be a judge, working on similar case and not rely just on one's own opinion about the case. An experienced mediator will not only evaluate the case, but will also assess the likelihood of the parties to prevail at trial as well as the jury appeal of the case. 

Secondly, mediation is a "risk free" hearing. The parties do not have to settle at the end of the day if they don't want to, but they will at least both know where each stands as far as the figure which they are willing to pay/accept to settle the claims.   

Lastly, a settlement reached at mediation is confidential (unlike court judgments which become a public record). This means that no one, except the parties and the mediator, will have knowledge of the settlement terms and conditions agreed upon at the conclusion of the mediation hearing.

Statistically, most mediations are successful and lead to settlement unless one of the parties or both sides are unreasonable stubborn and are not open-minded about the settlement possibility as they should be. 

The most significant disadvantage of a mediation hearing is its cost, which may may range these days in San Francisco Bay Area between $1,500 and $3,000 per party.  

It is important to have the right mindset when submitting a case to the mediation: mediation is an attempt to negotiate a settlement and it's all about compromise. Successful that leads to settlement means that both parties are somewhat unhappy. The employee often gets much less than what he thought he will or he deserves, and the employer pays more than he believes is right. In exchange, however, both parties get the certainty and the opportunity to move on with their lives and business and close that chapter without it hanging over their head and without the risk of losing at trial.