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Often, we receive calls from individuals who state they want to “file a lawsuit” right away. Although filing suit at the outset of representation is sometimes appropriate (for example, in matters relating to the Fair Labor Standards Act and the False Claims Act), it is usually advised to first contact out to the other side with an overview of the claims and see if there is an interest in resolving the matter pre-suit. Litigation is both time consuming, unpredictable, and expensive, as the costs related to litigation quickly add up (the filing fee, costs associated with service of process, deposition costs, etc.).  One process by which parties can attempt to reach an amicable resolution is through mediation. In a mediation, a neutral third party (the mediator) works to assist individuals in reaching a resolution. Mediation is more affordable than litigation, is faster, and is a more informal process than litigation. This post will provide an explanation of the confidential mediation process.

Once the parties agree to mediate, they must work to agree on a mediator and a date to conduct mediation. One consequence of the COVID-19 pandemic is that mediations are now routinely conducted via Zoom or a similar platform, making scheduling easier. We have found “virtual” mediations to be just as, if not more, productive than in-person mediations. At the mediation, typically the parties begin in the same room (or virtual room) for the mediator to make introductions and for the parties to present opening statements. This element of mediation is useful, particularly when the case is pre-suit, so the parties can better understand the other side’s position. This is ordinarily the only time during the mediation the parties are all in the same room. Following the opening session, the parties will be placed into separate rooms, and the mediation begins in earnest. Mediators have different techniques in trying to help the parties reach a resolution. Some mediators focus heavily on the facts prior to discussing monetary terms, while others go straight into the discussions about the money. There is no right or wrong method, and the mediator’s approach can vary depending on the case. Whatever method is used, the goal remains the same: helping the parties resolve the dispute. The parties are active participants in the process and any resolution. For a confidential mediation to be successful, each party must be willing to move off their initial dollar figures and to truly be dedicated to the process.

For cases that have proceeded to litigation, both state and federal courts require mediation at some juncture in the litigation process. Mediation allows parties the opportunity to compromise and avoid the time and expense of litigation, an exercise that would surely meet with Lincoln’s approval who once said, “Persuade your neighbors to compromise whenever you can.” [1] Jill S. Schwartz, Esquire, is a certified Florida Supreme Court mediator, and she is available both as counsel and to act as a mediator to assist parties in resolving matters.  If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

[1] This quotation is attributed to Abraham Lincoln and comes from documents collected after his death by his former White House Secretaries John Nicolay and John Hay. It is not known if President Lincoln ever delivered the lecture from which this quotation is taken, entitled “Notes for a Law Lecture.” Here is the full context of the quotation: “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.”  Abraham Lincoln’s Notes for a Law Lecture, Abraham Lincoln Online, https://www.abrahamlincolnonline.org/lincoln/speeches/lawlect.htm (last visited Oct. 31, 2022).

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