Employment mediations traditionally follow a predictable format.

The attorneys and parties typically meet the mediator for the first time on the day of the mediation hearing. After initial introductions, the counsel and parties hold a joint session at which the attorneys give opening statements. Sometimes the parties also speak in the joint session. The mediator will often repeat the points made by each side, careful to reframe the statements to present the information in a more neutral format.

The mediator then meets separately with the plaintiff and plaintiff’s counsel and with the defendant and its counsel for the rest of the day, trudging back and forth between the rooms. In the separate caucuses, the mediator listens to the parties telling their stories and to the lawyers elaborate on the reasons the law supports their client’s position. The mediator helps the attorneys and the parties focus on the cost of continuing with the litigation and helps each room evaluate the facts and law to estimate a probable outcome if the case is ultimately tried.

Through a series of individual caucuses, the mediator may be ultimately successful in moving each side toward a resolution both can live with. When agreement is reached, the group often reunites for the formal signing of the settlement agreement, handshakes all around and, in most cases, a final parting of the ways.

The average employment mediation lasts from eight to 12 hours, and the parties and attorneys are usually fatigued at the end of the session. Employment mediations tend to be long because they are so emotionally charged. And it isn’t only the plaintiff with tales to tell and steam to let off. Defendants accused of discrimination, sexual harassment or other forms of not so politically correct behavior often come to mediations with much to get off their chests.

Admittedly, mediation is not therapy. But until both the plaintiff and the defendant have been given an opportunity to tell their stories and know they have been heard, neither is usually ready to put the dispute behind them and start talking about deal points that could form the basis of a settlement agreement. Catharsis is a critical step in the march toward a signed settlement agreement.

Employment practitioners and mediators are re-examining this one-size-fits-all format, however, wondering whether other formats would be more functional and take less time.

Take, for example, a case in which a 56-year old former branch manager of a well known bank sued the bank, claiming age discrimination, retaliation and constructive termination after she had been employed by the bank for 18 years. The bank claimed her performance was suffering and that she left because she did not appreciate her new manager’s suggestions to improve her work. The attorneys agreed the case should be mediated and selected a mediator.

The mediator arranged individual premediation calls with both counsel. The mediator learned from the plaintiff’s counsel that plaintiff would need an opportunity during the mediation to tell the defendant representative how inappropriate the bank’s conduct had been. The plaintiff’s counsel stated that, until his client had a chance to tell her story, he did not think she would be ready to talk about resolution.

The mediator learned from the defendant’s counsel that the defendant felt the plaintiff was a complainer, talked incessantly, and probably should have been counseled years before. Defense counsel planned to bring to the mediation the person who managed plaintiff’s new supervisor. Counsel disclosed that this individual had put up with plaintiff for years and would likely not have the patience to sit through an opening session where plaintiff was given unlimited license to vent.

It was clear that a traditional mediation model would not be the most efficient method of resolving this case. The plaintiff needed an opportunity to unload some of her frustrations, but the mediator sensed that the defendant would become more settlement-resistant if the plaintiff were permitted to state her grievances directly to him.

The mediator held a conference call with both attorneys and suggested that the first sessions with the plaintiff and defendant occur before the formal mediation session. The mediator arranged to meet plaintiff and her counsel office for three hours in the morning and to meet with defendant for an hour in the afternoon. The mediation would occur the following day. Both sides agreed to the format and the allocation of time. The defendant realized the plaintiff needed time to talk and was pleased he was not forced to sit in a room and wait while this process unfolded.

Both sessions went well. The mediator worked with the plaintiff to sketch out the major points she wanted to share directly with the defendant, helping her practice a statement to be made during the joint session. The plaintiff agreed to limit her remarks to five minutes. The mediator sought and obtained permission to share the substance of plaintiff’s intended remarks with the defendant.

During the session with the defendant, the mediator was able to prepare the defendant for the short statement the plaintiff would make during the joint session and helped the defendant formulate a response that would communicate to the plaintiff that he heard her (not that he agreed with her) and that he was interested in resolving the dispute.

On the day of the "real" mediation, the joint session went exactly as planned. The mediator met with plaintiff and her counsel in caucus after the joint session and found the plaintiff quite ready to begin discussing ways to resolve the case. An agreement was reached five hours after the mediation session began. The attorneys and parties spent the next 90 minutes drafting and signing a settlement agreement. The mediation had started at 10:00 AM and the parties were on their way home by 4:30 PM. Had a traditional mediation model been used, the mediation could easily have taken twice as long.

Several occurrences contributed to the success of this format. The plaintiff had an opportunity to rest after the first day of venting. She was able to tell her story to the mediator and to practice the words she would say to the defendant during the joint session. On the day of the mediation, the plaintiff was already in a frame of mind to resolve the matter because the catharsis had happened the day before. The defendant was prepared for the statement the plaintiff made during the opening session and was able to stay focused on the real drill for the day--resolution.

In other matters, such as sexual harassment cases where the plaintiff is uncomfortable facing the alleged harasser, the parties and mediator might consider excluding the alleged harasser from the joint session. The session could include the alleged harasser’s attorney, the company representative and the company’s attorney as well as the plaintiff and her attorney. Usually, the alleged harasser will be relieved to be excused from the opening session. It is important, however, to make sure this individual is briefed on the events that occurred in the joint session and that the mediator repeats her opening remarks in the individual caucus with the alleged harasser.

In sexual harassment cases involving a consensual relationship gone awry, it is sometimes productive if the plaintiff and defendant meet together with the mediator to have a dialog outside of the presence of their attorneys. The session should be strictly confidential. Unresolved relationship issues can a barrier toward settlement and this format allows these issues to be aired in a safe place.

The formats available in an employment mediation are limited only by imagination. Attorneys involved in employment mediations should feel free to request pre- mediation conferences with the mediator to discuss alternative formats that may be appropriate for the case. Where the opposing attorneys in an employment case have a good working relationship, counsel can first agree on the mediation format to be followed and then begin the process of selecting a mediator who is comfortable with the suggested format.

Mediation of employment disputes is an evolving process. Experienced employment counsel and employment mediators should continue to evaluate the strengths and weaknesses of the mediation process and experiment with different formats that may lead to more efficient mediations with greater success potential and client satisfaction.