Suppose that you are the HR manager for a company. The judge in a current law suit by a former employee has ordered mandatory pre-suit mediation. Your boss is unfamiliar with mediation and she asks you to advise her as to several issues regarding the upcoming mediation. Draft a memo thoroughly discussing, at minimum, the following questions:
- What are the advantages and disadvantages of mediation? Is it likely to be successful? Is it likely to make the parties more or less hostile toward one another? How do the costs in terms of time and money compare with litigation?
- If your boss has no interest in mediation, does she really have to be there? Can she send her attorney instead? If so, are there any conflicts of interest with respect to attorney advocate representation of which she should be aware?
- Must the company actually participate in the mediation? Can your boss (or her attorney) just sit there and refuse to speak?
- If your boss (or her attorney) does decide to engage in dialogue during the mediation, what are the risks concerning information that might be disclosed? If the mediation fails, can the former employee use such information at trial?
