1. Know your case, and collect your evidence. The first requirement is to have a case, and your attorney must understand the legal elements that must be proven. Ultimately, the mediator must be able to give an opinion to each side whether there will be a likely outcome at trial or arbitration. Unless you have set out facts and law showing a potential for success at trial, the mediator has nothing to work with in convincing the opponent it could lose and lose big if mediation isn’t successful.
2. Know your opponent’s case, and particularly know its weaknesses. Either by formal discovery, or by informal exchange, you must anticipate the employer’s defenses, and be prepared to answer them. In employment law, the focus is usually on the reasons the employer gives for terminating employment. Those reasons must be exposed as so incredible as to be likely lies. That means you have to know each and every “justification” for the termination, and be prepared to discredit it completely.
3. Select an effective mediator. In employment law matters, that usually means a mediator with a proven background in employment law. You and your lawyer should know the reputation of the mediator in the relevant community. In employment law, for example, there are likely a handful of mediators that are regularly used by both sides because of their expertise, their balanced viewpoints, and their proven track record in reaching settlements both sides can accept. The qualities most often cited by attorneys as desirable in a mediator include mental quickness, preparation, a strong nose for nonsense or sham, a pleasant but firm demeanor, tenacity and perseverance even when negotiations sour, a command of the relevant law, and the ability to analyze the strengths and weaknesses of each party’s position.
4. Present a compelling and coherent story of what “really” happened. You must present a theory and theme of the case that is consistent with human nature, and the way people generally act. You must address the motivations behind the “bad” employer conduct. People generally do not act to harm others arbitrarily, but because they are fearful, angry, greedy or prejudiced. You initially present this case through a confidential “mediator’s brief”, but you may also give a “preview” of your opening statement to your opponent in the “opening session” of the mediation.
5. Have a settlement goal. That goal should reflect multiple factors: the strength and weaknesses of your case, your individual desire to avoid risk or gamble on a trial; the extent of your economic and emotional injuries caused by the termination, demotion, or transfer; your ability to finance the litigation; and the practical question of how much you think the employer will pay to settle. The point here is to get to a specific number well in advance of the mediation that will operate as your settlement goal. Virtually everything you do in the mediation will have meaning in reference to this goal, and your negotiation decisions revolve around that goal. Make sure you and your attorney are on the same page before the mediation begins.
6. Mediation is a time for listening, not arguing. Yes, you make your points in mediation, but you gain points by acknowledging the other party’s position, and that that position is supported by some evidence, even if not compelling. Being polite, even gracious, goes a long way in mediation, and showing the ability to smile and even be light-hearted with the other side can lower the other party’s resistance to hearing what you have to say. Basically, you can state the other party’s position, while also stating that you believe the more compelling account of events is the one your client presents.
7. Know the mediation dance. You never bid a number that is what you will really take. You generally want to build sufficient margin into your bid to concede in mediation that you may have “problems” in making your proof at trial. Novices at negotiation tend to get impatient to get to a “bottom line” in mediation, especially as the day wears on, and the rate of progress seems so slow. Generally, there are somewhere between 4 to 8 movements by each side to get to a “strike point”. While each pattern will vary, smaller movements in the beginning are followed by bigger movements in the middle of the exchange, followed by a return to smaller movements at the end. Sometimes the parties are each signaling that they are at the end of their negotiation flexibility. At that point, a mediator can sometimes arrive at a number that each side feels is a major concession, but that each will accept “if it will settle the case” at the end of the day. How you dance and how much flexibility you show will depend heavily on the “settlement goal” you established in Step Number 5, above.
8. Be prepared to walk out, but avoid “storming out” to make a “statement” of how unreasonable the other side may be. The difference is this: you walk out if your bottom line is not honored in the negotiations. See steps 5 and 7 above. You walk out only at the end of the day, when the mediator, not you, signals that he or she can do nothing more to bring the parties together. I have seen cases settle at the last minute because the mediator is able to propose a final number in a last ditch attempt to close the case.
9. Be sensitive to the “signals” of negotiation. A small offer to an enormous demand unrelated to the likely value of the case is a “signal” that the other side isn’t interested in negotiating against astronomical numbers, but may be “back in the game” if a more reasonable demand is made. Perhaps after a series of small offers and consistently large demands, one of the parties will make a conditional offer or conditional reduced demand, contingent on the other side matching the movement with a specific big concession of its own. This signal can sometimes break an impasse.
10. When you reach a deal in mediation, get the deal in writing, signed by all parties. Most good mediators have basic forms they use to “fill in the blanks” of the settlement, so that there is an enforceable agreement in existence during the period of time after the mediation to the point in time when a new formal, comprehensive agreement containing the same basic terms is again signed by the parties.