Although the fact patterns of employment cases vary considerably, there is always a common theme. The plaintiffs believe they have been mistreated by their employers, and the employers almost always deny the factual allegations. Consequently, employment mediations tend to be emotionally charged. At the same time, the cases usually involve a complex body of statutory and case law. This requires a mediator who can empathize with the employee and employer, make them feel comfortable and engender trust. At the same time, however, the mediator must understand the applicable law and be able to discuss how it applies to the facts of the case.

Many mediators describe themselves as either facilitative or evaluative. Facilitative mediators provide a forum for communication among the parties and help explore settlement options without expressing opinions or pointing out potential weaknesses in the parties’ cases. Evaluative mediators bring up weaknesses in the parties’ legal cases and perhaps even offer potential appropriate settlement terms.

Originally published in Law.com on September 4, 2014.