Excerpt from "Chapter 16. Representing the Executive" by Wayne N. Outten, appearing in Executive Compensation, editors Yale D. Tauber and Donald R. Levy, copyright © 2003 The Bureau of National Affairs, Inc. Reprinted by permission.
Mediation of employment disputes: A breakdown of benefits, considerations and the process by New York employment attorney Wayne N. Outten.
An attorney representing employees—or employers—should consciously consider mediation in virtually every significant employment dispute that cannot be resolved through direct negotiations.
Familiar surveys have shown consistently that a very high percentage of civil lawsuits settle before judgment, typically more than 90%. And countless disputes settle before they ever mature into lawsuits. Therefore, it is highly likely that any particular dispute will settle at some point; the question usually is, when? Mediation presents the opportunity to ascertain whether such disputes can be settled earlier in the process than may otherwise be the case.
The success rate for mediation depends on numerous variables, such as the ability and techniques of the mediator and the manner in which the mediation was initiated. Empirical evidence suggests that the success rate is much higher when the parties initiate and pay for the mediation, as compared to when the parties are pressured into forum- annexed mediation by a judge or someone else. Reports indicate that court-annexed and agency-annexed mediation programs have success rates in the 50%-60% range, whereas private mediations succeed 80%-90% of the time. (For these purposes, “success” is defined as a settlement satisfactory to the parties.) Sometimes, even when a mediation session fails to result in a settlement at that time, the session may lay the groundwork for a subsequent settlement.