In employment matters, it is imperative that the Mediator have a firm grasp on the underlying substantive and procedural law applicable to the claim. Without this, results are far more difficult to attain in a mediation.
Whether the claim arises from sexual harassment, failure to accommodate a disability, pregnancy discrimination, whistleblower actions or wrongful termination in violation of a public policy (Tameny claim), the law is ever changing.
A failure to understand the nuances of employment law may well result in a case that doesn’t settle or gets mis-evaluated. Counsel that put every effort into mediation can’t waste time educating the mediator on something he doesn’t understand. At the Briski Mediation Group we have a thorough understanding of employment law.
This is only the beginning in employment matters. Because so often these claims revolve around the credibility of the Plaintiff, the ability to evaluate the Plaintiff is essential and how they will ultimately present at deposition, trial or arbitration. Having represented Plaintiffs in employment matters, Mr. Briski is well versed in this aspect of a case.
Additionally, the employment mediator must be well versed in the viability of a variety of collateral yet important issues such as:
- Arbitration provisions in employment contracts and their effect (if any) on the mediation.
- Matters such as insurance coverage under an Employee Practices Liability Policy known as EPL or EPLI, the availability of coverage under a commercial general liability insurance policy (CGL) or other areas of coverage.
- Confidentiality provisions.
- Taxability of a settlement and common issues surrounding indemnity clauses.
- Likelihood of prevailing on summary judgment or adjudication.
- Availability of punitive damages and attorney’s fees.
Each of these items can and do have a real affect on the value and outcome of mediation.
Counsel should have their case ready to prove up with witness statements documents etc…
In utilizing mediation to resolve a difficult employment matter, employers and employees alike can attain the classic “win-win” scenario, for the cost of litigating an employment claim usually does not justify the relative risk of exposure or an adverse decision.