Many employees with legal complaints attend mediation at EEOC or another agency on their own, without a lawyer. This article describes ways a lawyer could help in mediation, and reasons to consider getting one.
As a lawyer, I obviously have a bias toward telling employees to get a lawyer. But note that arguments for “a” lawyer mean ANY competent employee rights attorney (not necessarily me). Also note that the potential benefits of a lawyer below must be weighed against the lawyer’s potential fees, especially if the lawyer asks for out-of-pocket fees and will not work on a contingency basis where he or she is only paid via a percentage of winnings.
One way a lawyer can help you in mediation is to evaluate your case’s merits and evidence. Often, and understandably, workers are not aware of what factors make for a good case. For example, many workers feel that strong performance reviews (documents) are strong evidence in a discrimination case. In reality, such reviews can be helpful on occasion, but are generally a secondary form of evidence. Strong evidence in a discrimination case would be documents, emails or recordings that show discriminatory statements or conduct by management toward the complainant worker. Quite often, I encounter workers who misunderstand what types of actions are and are not “discriminatory”, and what types of evidence are and are not helpful. An attorney can help a worker better understand his or her case’s evidence, and in what respects the case’s merits are strong or weak. Having an understanding of the merits is directly useful in mediation and settlement-discussion leverage.
A second way a lawyer can help you in mediation is to evaluate your case value. It’s hard to settle a case reasonably if you– and the opposing party– don’t have a realistic idea of what your case is worth. In my experience, employees who try to evaluate their own cases’ valuations are usually wildly wrong. Not because they aren’t smart or didn’t do their research. Rather, folks are usually very wrong because they lack experience in employment law, don’t know all the potential claims, don’t know all the categories of money (damages) that can be won, don’t know standard ranges of settlements for similar cases, and don’t understand how risks affect their cases’ valuations (i.e. risks of losing, of partially winning, of spending your own money, etc.). For example, an employee may decide his case is worth at least a $100,000 settlement because of how “unfair” the employer’s discharge of the employee was. However, this perception of “unfairness” will not be compelling to a judge or mediator, who will need to hear arguments about very specific laws and penalties to be persuaded to recommend a given dollar value, especially a high one. If an experienced employment attorney evaluates your case, the potential valuation and/or settlement recommendation he or she makes will likely be much different than what you had concluded on your own. An attorney would be able to describe the reasons why that valuation or settlement range is appropriate. If you go into mediation with an attorney who is able to explain a well-reasoned and credible case valuation, this will likely impress the mediator and opponent (whether they say so or not), and help facilitate a reasonable settlement.
A third way a lawyer can help you in mediation is to add credibility to your case. Fair or not, most opponent-employers do not take an employee-complainant’s case seriously unless the employee has a lawyer. I suspect many mediators feel the same. Without a lawyer, if your case does not settle, you will likely lack the legal skills to take your case the full way to a hearing and appeal. Employers know this. So they make lowball settlement offers to employees who do not have attorneys. A mediator can try to convince the employer not to stick with a final offer that’s unrealistically low. But I would bet that most mediators view cases without employee-attorneys to have lower values than those with attorneys. So employers are likely to make lower offers, and mediators are more likely to think your case has a lower value, if you don’t have an attorney and don’t appear capable of taking your case all the way to a legal conclusion if it doesn’t settle.
A fourth way a lawyer can help you in mediation is to provide distance between you, the mediator and your opponent. To explain: litigation is emotional, and emotions are often the biggest barrier to discussing a reasonable settlement. A lawyer represents your interests, but is NOT of course the same person as you. So the opponent employer will likely be more open to what your lawyer says (assuming your lawyer acts professionally, as most do) than to what you say (given your prior direct involvement and negative history with the employer). I have found that mediators also appreciate having a lawyer present, as a middle-man or – woman, to serve as a go between between your opponent, the mediator (a neutral party) and yourself. The mediator and lawyers are kind of buffers between the opposing parties, and can simmer some of the emotions in those buffering roles.
I hope this information was of some value if you have mediation coming up. If you have any questions or comments, please feel free to contact me.