Early Mediation Is Often Unfair To Plaintiffs In Employment Litigation

Posted by Kevin Koc | Sep 01, 2021

As in life the only two certainties are death and taxes, in litigation there is one certainty: Mediation. Mediation has virtually replaced trials. Every case is likely to be ordered to undergo one mediation - and sometimes - two mediations. While this process is fair and effective for certain types of litigation and especially is so late in the litigation process, early mediation is far from fair (though still somewhat effective) for single plaintiff employment law cases. 

In fact, early mediation (i.e. mediation that occurs before meaningful exchange of documents and information) of employment cases comes dangerously close to a kangaroo court - especially for an unrepresented Plaintiff (a situation which frequently arises in the context of EEOC mediations). The reason for this is simple. The employer shows up with its corporate counsel and some very high level managerial or human resources employee - but no individuals who are fact witnesses for the employer's case. The plaintiff, however, appears sometimes with a lawyer but as the only source of first-hand factual information about his or her lawsuit. That is, when the mediator is learning about a legal claim, he or she can ask questions of and gauge the credibility of the plaintiff. But when the mediator goes to talk to the employer's mediation team, the employer's side of the story is hearsay and perhaps even the result of a game of telephone. That is because there is no person usually available to give first hand factual information to the mediator during the mediation on behalf of the employer. Instead, half-truths or misunderstandings or wishful thinking can drive the corporations narrative at the mediation whose goal it is to get the plaintiff to settle his or her case for peanuts -- maybe even at the expense of the truth.

This creates a very unbalanced process for a mediator whose job is to be evaluative of the merits of a claim, and disadvantages the plaintiff/claimant because there is no reasonable factual certainty that can come from the employer to respond to the plaintiff in the course of a mediation negotiation. Instead the employer is often able to present their "perfect" hoped for defense -- which may not even be remotely sustainable by the actual evidence after documents are exchanged and witnesses deposed. This is problematic in early mediation because the employer usually holds all the emails and records that could undermine its case, but surely won't disclose them beforehand. The employees (i.e. the Plaintiff) typically do not get access to this information until later in the litigation process, and often, only after court intervention.

Considering this, courts and mediators should be weary about their approach to early mediation of such cases and take proactive steps to level the informational playing field ahead of time. This will help ensure mediation is a fair process and less subject to fanciful factual interpretations by corporate defendants which employee plaintiff's are powerless to contradict in the early stages of litigation.

About the Author

Kevin Koc

Kevin Koc has practiced employment law in Kansas and Missouri for over 15 years and has been a part of several successful jury trials and federal appeals. Prior to becoming an attorney he worked in the Human Resources field where he gained a practical understanding about how the day to day work life of employees is impacted by employment laws.

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