1. Bring to the mediation, information concerning the employee’s salary and benefits. What is the value of the benefits lost? What is the rate of pay? Many times offers are made in relationship to pay. For example, offering the Plaintiff a settlement that equals an amount of pay for a certain period of time.
2. If the Plaintiff is still employed, is there a value to negotiate a settlement with a resignation. Most companies will want a resignation if a settlement is reached. Think about your position concerning this before the mediation. If resignation is part of the settlement, will you agree to not contest unemployment? Unemployment is a big issue for many fired Plaintiffs. What is your company’s position? Often you can agree to not contest if the reason stated for the termination is accurate and truthful.
3. Remain flexible. Your employment lawyer is with you at the mediation. Let he/she be the advocate. You should remain open to options.
4. Stay away from reference letters. Unless you can truthfully give references, don’t negotiate this as part of the settlement. Often Plaintiffs want a positive reference letter and most companies only give a neutral reference, stating length of employment, position held and rate of pay. Don’t open the door concerning a positive reference letter. It is a rare case where both sides can agree on the wording. To negotiate this creates more friction and ways to disagree.
5. Don’t skip the opening session. Sometimes attorneys want to skip the opening session where all parties, counsel and representatives are in the same room. This is a MISTAKE. There is something important that happens when everyone is in the room. It breaks the ice and opens the opportunity for the mediator to resolve the conflict.
6. Please excuse this analogy. In the opening session, you get more flies with honey, than you do with vinegar. Smart litigators know the opening session is not the time to try the case. The opening session is the opportunity to present their best case in a calm but firm manner. Getting in the other side’s face will not help.
7. Be pleasant to the Plaintiff in the opening session. Acknowledge the Plaintiff when he/she comes in the room. Put a positive expression on your face. Remember this is the time to “break the ice”.
8. Don’t paint yourself in a corner before the mediation. You may learn something new at the mediation. If you tell your company the case is worth a small nuisance amount, your call later to get more money will be awkward. Getting a range of settlement amounts offers much more flexibility. Remember you don’t have to spend it all. But having it to spend is much better than trying to get more money during the mediation.
9. Share your insights with the mediator. As the HR Representative, you have had the most contact with the Plaintiff. Insights about his/her personality or background can be helpful to the mediator. There is a lot of psychology in mediation. As the mediator, my job is to connect with the Plaintiff to see if there is a way to resolve the matter. Any information you have may help me do this.
10. View the mediation process as a learning lesson. Many times Defendants settle cases, not because they discriminated against the Plaintiff, but because there were management issues. Management mistakes can open the door for the argument that it was discrimination, even if it wasn’t. View the mediation as a learning lesson to improve. HR is not an easy job. Any Company owner will tell you that the hardest part of running their business is the people part. There is no book to turn to that will give you an answer for every employee issue. People are different and their issues and problems can be just as different. Remember working with employees may be difficult at times, but it is never boring.