Tip from the Trenches -- 
Mediation offers your client an opportunity for prospective solutions to their current dispute with endless possible remedies, including even the ability for your client to pursue life goals. Litigation, on the other hand, is retrospective in nature and brings only limited possible remedies.
With economic downturns, discrimination charges typically increase. This current economic climate is no exception. The EEOC received a record 15.2% increase in charges in FY 2008. The filings for FY 2009 were only slightly lower than that record. Typically during better economic times when employees felt unfairly treated or wrongfully terminated, they moved onto other employers rather than file formal discrimination charges. With fewer opportunities available, unhappy or laid-off employees turn to litigation to pursue discrimination claims.
One key to resolving such disputes is to help your client understand the prospective focus of mediation, rather than the retrospective focus of litigation. Litigation requires parties to look back on what happened to prove or disprove discrimination claims. I've mediated cases where an employer agreed to pay for a former employee's master's degree in a field unrelated to the employer's business; to provide the materials and labor for a new roof for plaintiff's house; or to send a notice to current employees clarifying any misunderstanding for the reason the employee is no longer employed.
Settlement possibilities are endless with a focus on the plaintiff's future and his or her ability to get on with life!
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Recent Articles
U.S. Arbitration and Mediation Legislative Update This is a list of bills that have been introduced into the 111th Congress relating to ADR. One law already passed on Dec. 19, 2009 includes a provision (the Franken Amendment) that bans funds to defense contractors who mandate the arbitration of employment discrimination and other employment-related claims for employees and independent contractors.
Portland mediator, Richard Spier, wrote a wonderful and instructive article describing his vision of the "Perfect Mediation" -- one involving careful advance preparation and good lawyering during the mediation. A Mediator's Fantasy
In mediations involving multiple plaintiffs or where the defendant is represented by a team of diverse decision makers, the mediator often conducts a mediation within the mediation -- working to reach consensus among all of the individuals in each room before every negotiation move. John Folk-Williams' article addresses important factors in achieving consensus among divergent participants. Consensus Building: Changing Minds to Reach Agreement
Recent CA Employment Case Limiting Attorneys' Fees
In a case involving the City of Los Angeles, the Supreme Court of California decided that a plaintiff may not be entitled to recover his attorneys' fees where the jury award of $11,500 was too small to justify the $840,000 fee bill. The case also raises considerable confidentiality concerns where the mediator was subpoenaed to testify that the employer had been willing to settle for the verdict amount during mediation which occurred six months before trial.
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