This memo is intended to provide an understanding of the specifics of the mediation process ordered by a judge in the context of a lawsuit from your former employee. The compulsory mediation that you are encouraged to do is a very specific and customary practice. This text contains explanations on how to prepare for mediation, with what mentality to approach this process. If you delve deeper into this process and prepare for it seriously, you will be more likely to come to a mutual agreement and then finalize the case.
Advantages and Disadvantages of Mediation
The thought that you should keep throughout the preparation and implementation of mediation is the need for a strategy to be successful. We need to understand the undeniable advantages and possible disadvantages of this type of dialogue and how it differs from other judicial practices. Nothing guarantees you a successful mediation result. However, this type of dialogue can be extremely effective if you yourself wish to try to resolve the case as quickly and painlessly as possible. Mediation can help you avoid more serious and lengthy litigation, so this process is useful if you do not want to get bogged down in lawsuits indefinitely.
The absolute advantage of mediation is that it may save a huge amount of money spent on litigation. Mediation at the moment is, perhaps, one of the most recognized worldwide ways of resolving a legal conflict. Moreover, mediation is perceived by scientists as a process that has qualitatively improved the judicial system in many countries (Ali, 2018). Mediation has undeniable psychological benefits since it is usually devoid of the hostility of litigation and in itself is designed to stop hostility. That is why it is also called the Alternative Dispute Resolution Method. Remember that statistically, most cases that are settled in this way do not end up in court as a result. You have the opportunity to resolve the conflict and avoid lengthy litigation that takes up not only a lot of time and emotional energy but also a huge amount of money.
The Question of Using a Representative for Mediation
First of all, I suggest you think for yourself and come to a conclusion why exactly you need these negotiations. Think about what exactly you want to achieve as a result and compare it with reality. You need to imagine exactly how realizable your tasks are and whether your opponent is ready to compromise with you. I strongly advise you to keep in mind that in the case of mediation, you have essentially more control over the outcome of the case than if it goes to court. You should be prepared for the fact that mediation is not a momentary process and take it progressively, realizing exactly what requirements you are upholding.
You will have to carry out all the necessary steps to prepare for this process in order to master the case materials independently. We must fully consider that mediation is primarily an attempt to find common ground in the dispute of contradictions. Litigation is generally considered to be more unpredictable than mediation agreements, so by neglecting mediation, and you actually risk losing influence on future litigation. Therefore, mediation is a great opportunity to look your opponent in the eye, psychologically feel his position and be ready to understand him, perhaps even offer some concessions. Please note that statistically speaking, the time spent in preliminary meetings can make the parties more hostile to each other, despite the fact that the parties’ confidence in the mediator will increase (Charkoudian et al., 2018). Your willingness to negotiate can help you avoid the risk of being defeated in court.
The Need to Participate in the Process
It is necessary to prepare a brief to have a planned and nuanced approach to the case. It will not be superfluous to rehearse these negotiations in order to be able to adequately respond to any turns in the dialogue in the future. In case you are not interested in appearing at the mediation in person, I must warn you that these negotiations are much less likely to come to a resolution. To make a successful dialogue, you need to set realistic, achievable goals that might seem reasonable and understandable to your opponent as well.
One-sided dialogue and silence on your part may indicate not only unrealistic requests to your opponent but also your hesitation to participate in the conversation adequately. The unwillingness to talk and the desire to send your representative for mediation may seem to your opponent as your weak point (Garcia, 2019). Your silence can eventually be perceived as a vulnerability, a sign of your ignorance that will make the other party feel more confident in defending their claims and in their legitimacy and fairness. You must come to mediation with a rational spirit and a willingness to negotiate. You need to have a plan that you will pass on to the mediator, saving him time and clearly making him understand your goals. You may even put the mediator on your side if your requirements are reasonable and clear.
Confidentiality of Sounded Information
You should not be afraid that the information voiced during the dialogue will in some way be used against you. Disclosure of information voiced during mediation is strictly prohibited, and confidentiality is at the heart of the very philosophy of the mediation process (Anderson, 2019). However, this does not mean that you should not weigh your words when talking to your former employee or his representative. Mediation gives you the opportunity to listen carefully to your opponent in order to prepare the strongest defense or the most appropriate solution. Through mediation, you can understand the psychology of the opposite side and use this to your advantage.
Also, you should not underestimate the mediator himself, as he plays a fundamental role in the process. You can explain in detail to him the essence of your case at a time when only he is the connecting thread between the two parties. If you give your attorney full control over the case, you run the risk of a possible misunderstanding of the parties. The attorney may incorrectly convey your requirements to the mediator or choose an undesirable behavior strategy for you in the mediation process. Thus, you can transfer negotiations to other hands but regret it later. Therefore, you need to be present at this meeting, listen carefully, and speak carefully. Only by being fully involved in the process and participating in it thoughtfully and directly, you have the opportunity to really grasp the essence of the matter. You need to understand what you exactly want and how to get it while minimizing conflicts and risks.
In case you need any additional information regarding mediation, please do not hesitate to contact me. I hope that the information provided in this memorandum will be sufficient for successful preparation for the act of mediation.
References
Anderson, D. Q. (2019). Piercing the veil of confidentiality in mediation to ensure good faith participation: An untenable position? Singapore Academy of Law Journal, 31, 713-746.
Ali, S. F. (2018). Court mediation reform: Efficiency, confidence and perceptions of justice. Edward Elgar Publishing.
Charkoudian, L., Walter, J. L., Eisenberg, D. T. (2018). What works in custody mediation? Effectiveness of various mediator behaviors. Family Court Review, 56(4), 544-571.
Garcia, Angela Cora. (2019). How mediation works: Resolving conflict through talk. Cambridge University Press.