What Is a Demand Letter, and How Demanding Should It Be? Demand Letters, Part 3

Is It Worth It?, Litigation

In my previous two posts, I talked about how getting your emotions under control will allow you to get the jump on your former employer when litigation begins. The first addressed what to do when you receive the company’s response to your demand letter. The second discussed what to do when you get the typical disappointing response from the Equal Employment Opportunity Commission (EEOC). Today, we’ll discuss a strategy for handling mediation and enduring the presentation by the other side’s attorneys.

What Is Mediation?

Mediation is an alternative to traditional litigation. The EEOC describes mediation as “an informal process in which a trained mediator assists the parties to reach a negotiated resolution of a charge of discrimination. The mediator does not decide who is right or wrong and has no authority to impose a settlement on the parties. Instead, the mediator helps the parties to jointly explore and reconcile their differences.”

Mediation can take place at any point in the litigation process. Typically, it happens at one of these points: before you file with the EEOC (usually private mediation), after you file with the EEOC or other administrative agency, or at some point after you file a complaint in court.

How the Process of Mediation Begins

Regardless of when it occurs, mediation almost always follows a similar pattern. The mediator, who can be anyone from a sitting judge to a nonlawyer, will start by setting the ground rules for the mediation. Then the mediator will give each side five or so minutes to talk about its position. (Each side will also have submitted written statements to the mediator beforehand.)

When you are suing a company, it’s frequently the company lawyer who gives the statement. The primary objective of the lawyer at this point is to convince you that your case is a loser. As you might imagine, this is not fun, especially if the company’s defense is that it fired you because you were a terrible employee. How distasteful this experience is can run the gamut from a fairly dispassionate presentation by the company lawyer and a company representative to a bombastic presentation by a blowhard attorney while sitting beside your former bad-actor manager.

Either way, you should steel yourself beforehand. See this experience for what it is and ignore any insults. This can be particularly difficult if you had hoped (as many people do) to see some contrition from your company. Rather than an apology, you have to endure a speech from jerks on the other side about how wrong you are and how frivolous they find your case.

Your Appearance Is Important

Do not underestimate the importance of your appearance in mediation. If mediation occurs before you have been deposed (when the company’s lawyer asks you questions about the case in front of a court reporter), this will be the first time your company’s lawyer ever lays eyes on you. And that moment is a big one. He or she is going to be sizing you up from the moment you walk in the door. What the company lawyer wants to evaluate is how you might do as a witness. To this point, the company attorney only knows what other people have said about you.

But wait, it gets worse!

The Shakedown

After the initial opening statements, the mediator will split the parties into separate rooms and then engage in shuttle diplomacy. That is, she will go into each room to have a private conversation with each side. The conversation will essentially go something like this: “Okay, I heard your presentation in the other room, but what would it really take for you to settle this case?” After that, she will usually ask for what you (and by “you,” I mean you and your attorney and anyone else you bring with you) believe the strengths and weaknesses of your claims to be.

Mediators vary on how freely they participate in this next part, but a mediator is likely to tell you about her perceptions of the strengths and weakness of your case. The mediator’s impressions are very important. It is likely the first time (and maybe the last) that you get an opinion about your case from a disinterested party who usually has some expertise in employment law. Of course, if the mediator is a judge, then her take on your case is very important.

But here is something important to keep in mind: the mediator’s job is to get the case settled if possible. This usually means that she has to get you to lower the amount you’re willing to accept while getting the company to increase the amount it is willing to pay.

While you can count on a mediator not to lie to you about your chances, she is likely to give each side a pessimistic view of its chance of success. What this means for you is that the mediator is going to point out the warts in your case. She is also going to share with you (when given permission by the other side—and you’ll get to do this too) what the other side is saying about your case.

It can sometimes be bare knuckles. That’s true for both sides. You’ll get to give as good as you get, but you won’t get to hear what’s going on in the other room. So, it can seem as if the mediator spends 20 minutes beating up on you, leaves the room for 20 minutes, and then just comes back and does it again.

It’s Time to Prepare Yourself

Now you know the deal. You know that the back and forth is just part of the gig, so you won’t let it wear you down, and it won’t cause you to gather up your things from the table and stomp out cursing. (Believe me, I’ve seen both of those outcomes more than once.)

If you know the drill, you can go in with your strategy and stick to it, just like you’re playing a game of poker.

P.S. Another thing to keep in mind about mediation is that it can be physically grueling. So bring with you what you need to stay sane: cigarettes, Diet Coke, Tic-Tacs, prayer beads, or whatever. A book or a magazine is also probably a good idea. There can be significant downtime while the mediator talks to the other side in the separate room.

Summing It Up

Here are some important points to remember about mediation:

  • The mediator’s objective is to settle the case.
  • This means that the mediator’s strategy will likely be to point out the weak spots in your claims.
  • It may seem like the mediator is picking on you, but that’s not the case. The mediator will be picking on the other side too. You just won’t be able to see it.

If you are considering mediating your case, don’t go it alone. Reach out to us at the Spiggle Law Firm for an evaluation of your case and suggestions on how to proceed.