Stay Proactive

It may feel like once a case is filed that the outcome is out of your hands; that the chance to take proactive, ameliorating action is out of reach. That isn’t necessarily so. Pursue mediation.

Mediating in the early stages poses advantages for parties on both sides, such as:

1. “In-house” manageability of a situation gets further away from the parties as the legal process moves along.  As the matter progresses, sentiments fester and heels dig in.  The investment in or need for a decision-maker’s perspective grows.  Voicing and addressing concerns sooner rather than later may more easily rectify an outstanding conflict, minimize its impact, shorten its life-span, and avoid the filing of a complaint.

2. The sooner a matter is addressed, the greater the chance to turn morale around. People can be prone to believe the worst. Negativity can escalate and erode relations and productivity. Asking to mediate, however, demonstrates problem-solving sensibility and approachability.  It shows interest in addressing, understanding and rectifying concerns (sometimes primarily a breakdown in communication), rather than disinterest toward discord and resolution. This can improve information-flow to those responsible for the health of the workplace and lead to mutual efforts toward a safe, productive work environment.

3. The younger the conflict is, the greater may be the (temporary) availability of some non-monetary options that can enhance the prospect of mediating and settling. Such options and their value can disappear as time goes on. Some examples – with the caveat that each is mentioned for general discussion purposes, only, and subject to legal consideration on a case by case basis – are:

• Fuller communication that leads to better understanding of the root of the conflict, the reason for lodging/filing a complaint and the defenses raised thereto (i.e., assumptions that each party knew what the other knew), what the interests are, and what kind(s) of resolution may possible;
•  Expressions of regret shared alongside the reinforcement/enhancement of communication and other corrective measures can minimize immediate and broader fallout;
• Reinstatement or return to work which can avoid a wide range and degree of losses;
• Departure with the provision of a job reference (possibly denoting a description of work responsibilities), and agreement on who shall provide such, can serve an immediate need as well as minimize some of the most costly damages of conflict;
• Clarification of one another’s understandings or negotiation of the parameters of non-compete arrangements which may enhance circumstances for both parties; and
• Consideration for the greater efficacy of an earlier agreement to a confidentiality provision (though parties must be especially careful of recently enacted legal limitations associated with the availability of such).

Keep in mind, too, the relative value of achieving an early settlement in light of other possibilities.  Unfavorable short-term outcomes involving a Motion to Dismiss or receiving a Lack of Probable Cause finding can significantly weaken any remaining settlement potential.  Similarly, a Probable Cause finding can add tens of thousands of dollars to the cost of litigation and an assessed value of the case.

In short, the aging of a case can increase polarization and diminish the prospects for resolution and/or settlement. Be and stay proactive. Suggest mediation from the beginning and keep it continuously on the table. At the very least, the benefits include setting a conciliatory tone from the outset and planting a seed for discussion down the line if parties don’t immediately agree to convene.