Following the judge’s decision requiring the company to engage in a pre-suit mediation with a former employee, you need to understand its suitability and application.
Advantages, Disadvantages, and Applicability of Mediation
Mediation is an alternative dispute resolution approach where the conflicting parties try to resolve the issues instead of filing a lawsuit. Mediation has its advantages and disadvantages but they are dependent on the interests of each party. The main advantage of mediation is that it is associated with greater control as each party is involved in negotiating the agreement. Jenkins et al. (2017) note that greater control means that neither of the party can impose a settlement without a consensus. A court of law cannot offer this kind of control since the parties have to accept the ruling no matter its implications. The other advantage of meditation is that it is very confidential as it only involves the conflicting party something that would not be achieved in the court of law. Mediation is an advantageous approach to conflict resolution since it allows for convenience with the mediator listening for the parties’ views until they reach a consensus.
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In as much as mediation is considered an effective approach to conflict resolution it may not yield the desired results, as would a court of law. Mediation may not always result in an agreement meaning that the parties would be forced to seek the intervention of a court of law. The search for another avenue of reaching a consensus translates to a loss of the parties’ ammunition since during mediation they provide all the evidence (Saundry et al., 2016). The other disadvantage of mediation is that it lacks constitutional and procedural protections, which may lead to inequitable agreement. Despite mediation having these disadvantages, the company ought to embrace mediation to negotiate with the employee as it will quicken the process and reduces costs significantly. The company should avoid lawsuits since they are expensive both in terms of money and in terms of time considering that most cases drag on for too long. Nonetheless, the company should demonstrate goodwill in the process and try to listen to the employee as much as possible.
Understanding the Roles and Limitations of an Attorney in Pre-Suit Mediation
Pre-suit mediation involves the conflicting parties who establish the rules of engagement with the help of a mediator. During this time, the parties agree to the mediation, mediator, venue, participants, and how the process will be undertaken. This provision means that the conflicting parties or their legal representatives could handle the negotiation as long as it is within their reach. In case the top managers are not interested in mediation, they do not have to be there as their presence would interfere with the process. If the top management does not need to be part of the conflict resolution process, they can send the attorney to take care of its corporate interest. Ali and Geng (2019) assert that an attorney acts as the company’s representative who is capable of articulating the company’s part of the bargain and commit to the agreement. While this appears feasible, it may lead to a disproportionate outcome especially if the employee does not have an attorney. The reason for this proposition is the fact that the attorney possesses more legal knowledge as compared to the employee in addition to having the backing of the company he or she represents.
A company that sends an attorney to negotiate with the litigant needs to be aware of the conflicting interests such an arrangement could present. This claim would make sense if the company is not interested in the negotiation which means that the attorney owns the entire process. In such a case, the attorney could manipulate the process to gain legal leverage especially if he is keen on advancing private practice (Ali & Geng, 2019). The attorney could make decisions that prevent the parties from reaching a consensus, which means that the lawsuit will have to be decided by the court of law. A company’s top management needs to let the attorney know that he or she is representing the company and should then advance the company’s interests.
Assessment of whether the Company must Participate in the Mediation?
Pre-suit mediation involves two parties who are supposed to engage each other to reach a consensus and in this way reduce the chances of a lawsuit. With this being the case, it means that the conflicting parties must engage in a dialogue at the supervision of the mediator. The judge orders a pre-suit mediation in the hope that the parties will agree and in this way reduce caseload (Girolamo, 2019). This option then becomes a legal requirement and process with the parties expected to report on the process and the outcome. In such a case, the company or its representative must participate in the mediation. The thing that demonstrates that they are willing to explore this avenue to justice is through agreeing on negotiation terms and rules of engagement. Once the parties have agreed on these aspects, they must air out their views, which the mediator drafts, records, and presents to the court of law to indicate the out-of-court settlement.
The company seems disinterested in the mediation despite there being an outright order by the judge to negotiate with the employee. If the top management or the attorney agrees to the mediation but refuses to speak or contribute to the negotiation, it will be in breach of a court order. The failure to speak indicates that the company is not committed to mediation something that would contribute to the loss of a lawsuit if the case goes to trial. Moreover, the failure to engage with the plaintiff during the mediation affirms that the company is at fault and is not willing to make amends. These outcomes mean that a company must participate in the mediation and advance its interests to be the best of its abilities. The company of its attorney should not ignore the mediation process since it is a way of demonstrating its commitment to justice and fairness.
Risks Associated with Information Disclosure
The mediation process is similar to court proceedings as it involves the conflicting parties who present evidence to the mediator to support their actions. This kind of arrangement means that the company and the employee will face each other and engage in a dialogue to reach a conclusive end. The employee will be expected to provide evidence that supports that the company has violated labor laws thus the reason for the lawsuit. In the same manner, the company will also provide evidence to support its actions towards the former employee. While this disclosure is important in reaching an agreement it poses risks regarding how the information could be used. In as much as the parties are tied by the rules of engagement, either of the parties may disregard the confidentiality clause (Jenkins et al, 2017). The parties could use the information for unethical motives, which include defamation, ridicule, and harassment.
Pre-suit mediation is an effective approach to conflict resolution but it is not guaranteed that it will always work meaning that the parties would continue with the lawsuit. If the parties will move to a court of law, there is a risk that the information that was shared during the mediation would be used in the trial. The company needs to know that the mediation, which seems a bit formal, may pave the way for the oversharing of thoughts. The plaintiff who is a former employee, in this case, could use this information to build up a case against the company. Nonetheless, the company needs not to worry as the mediation process aligns with the clause on confidentiality. The clause establishes that anything that is discussed during the process and the documents prepared cannot be used outside of the mediation (Muigua, 2018). If this then is to be the case, the plaintiff, the company, and the mediator must sign the agreement.
References
Ali, M., & Geng, L. L. (2019). Alternative dispute resolution (ADR) In Pakistan: The role of lawyers in the mediation procedure. International Journal of Research, 6 (4), 421-430.
Girolamo, D. (2019).The mediation process: Challenges to neutrality and the delivery of procedural justice. Oxford Journal of Legal Studies , 39(4), 834–855. https://doi.org/10.1093/ojls/gqz011
Jenkins, R., Firestone, G., Aasheim, K. L., & Boelens, B. W. (2017). Mandatory pre-suit mediation for medical malpractice: Eight-Year results and future innovations. Conflict Resolution Quarterly, 43 (5), 1-16. https://doi.org/10.1002/crq.21194
Muigua, D. K. (2018). Making mediation work for all: Understanding the mediation process. Strathmore Law Journal , 5 (2), 1-7.
Saundry, R., Bennett, T., & Wibberley, G. (2018). Inside the mediation room - efficiency, voice, and equity in workplace mediation. The International Journal of Human Resource Management , 29 (6), 1157-1177. doi: 10.1080/09585192.2016.1180314
