Employment Law Mediation

Mediation is a process in which a neutral third party, the mediator, tries to help the parties resolve their dispute. The mediator typically is a lawyer or a retired judge who is experienced at helping facilitate settlements. For employment law cases, we highly recommend using a mediator who has substantial knowledge and experience handling employment law cases.

Although mediation often occurs after a lawsuit has been filed, parties can choose to go to mediation at any time, including before a lawsuit has been filed. Mediation is required in most employment law cases in New Jersey state court, and in the Southern District of New York (the federal court that covers Manhattan, the Bronx, Westchester and Rockland, among other counties).

The mediation process can vary depending on the mediator, the parties, and the circumstances. However, sometimes it begins with a joint session at which the parties discuss the case with the mediator. Whether or not there is a joint session, the parties typically will split into separate rooms, with the mediator going back-and-forth between the rooms, listening to each side, exploring what they need to be able to resolve their case and trying to find a way to move the parties closer to a settlement. 

Ultimately, if a mediation is successful the parties leave with an enforceable agreement, or term sheet, that outlines the key terms of their settlement.

Even if a mediation does not directly result in a settlement, the discussions during the process can help pave the way for a settlement in the future. In addition, going through mediation can help the parties learn more about the strengths and weaknesses of their cases, which can help them to be better prepared during the litigation, and if necessary at a trial.

Mediation is confidential, so nothing you share or discuss at it can be repeated outside of the mediation. Likewise, the mediator cannot reveal anything you tell him or her privately to anyone else without your permission. This confidentiality is intended to allow the parties to speak more freely without having to worry about it being used against you if the case does not settle.

Although they are both forms of alternative dispute resolution ("ADR"), mediation is very different from arbitration. Mediation is a voluntary process that helps the parties reach an agreed upon settlement. The mediator does not make any rulings or decisions.

In contrast, arbitration is more like litigation. The Arbitrator acts as the judge and jury, and makes a final binding ruling at the end of a hearing.

At Rabner Baumgart Ben-Asher & Nirenberg, P.C., we truly believe negotiation, often including mediation, is usually the ideal way to achieve the best possible result for our clients. Mediation can be a very effective way to settle a case relatively quickly and efficiently.

While sometimes trials and appeals are necessary, a good settlement typically is better for everyone involved than taking your chances of winning or losing with a judge, jury or arbitrator. Settling avoids the risk, cost and uncertainty of litigation, and gives you control over the fate of your case since there cannot be a settlement unless you agree to it. 

In addition, there often are results you can achieve through negotiation that a court cannot award, such as a neutral or positive job reference, a transfer to another position, or other non-monetary benefits.

In addition to advocating for our clients at mediation, two of our attorneys, Jonathan I. Nirenberg and David H. Ben-Asher also serve as mediators in court ordered and private employment law mediation. For more information please visit our mediators page.