I have been serving as an advocate in mediations for over 25 years, and providing service as a mediator for over 16 years. The Equal Employment Opportunity Commission, the Pennsylvania Human Relations Commission, the U.S.D.C. Western District of Pennsylvania, and the Pennsylvania Bureau of Workers Compensation all have formal mediation programs. Recently, the Allegheny County Court of Common Pleas in Pennsylvania also adopted a formal mediation program. If you pursue an employment case in Western Pennsylvania, chances are that you will be involved with at least one, possible two mediations before the case gets resolved. The increasing use of mediation as a part of the formal litigation process speaks to its success and popularity.

            You get out of it, what you put into it. If you come to mediation unprepared, you will not likely get much out of it. First, the preparation really forces parties to think about what they actually want. Second, it shows a certain level of disrespect to the other side when you are not prepared. A thorough understanding of the facts of your case prior to entering the mediation plays a major role in how it ultimately ends up. Being able to present the other side with something they have not considered will cause them to modify their position.

            The dynamics can and will change over the course of the day, so be patient. Make sure to clear the day and plan on being there for the long run. The parties often start far apart, and will remain there through the first few exchanges. But positions will change after the parties begin sharing new information and investing themselves in the process.

            Listen to understand, not just to respond. Parties have a tendency to frame what they think the other side's argument really is, and often it is something very different. Employees may not understand a nuanced legal issue being presented, and Employers tend to rely heavily on factual accounts from managers who may not be giving them the whole story. Both will learn something at the mediation and sometimes it significantly changes the discussion being had.

            Even at the administrative level, having legal counsel representing you is a tremendous value added. Mediators are neutrals, they are not there to provide a ruling on a legal question or offer legal advice. Employers or defendants in this situation usually have counsel or someone very experienced in dealing with these cases. Having someone who is not only an experienced legal negotiator, but who can explain the merits of legal arguments presented by the other side, is invaluable to reaching a successful resolution of your case.