When the order referring a case to mandatory, nonbinding mediation arrives, many attorneys simply toss it to the side, viewing mediation as just another (sometimes irksome) step in the litigation process. However, treating mandatory mediation as merely a hurdle during which the participants simply “go through the motions” results in a lost opportunity. Whether mandatory or voluntary, mediation is a productive forum that, when utilized to its fullest, can (and often does) lead to the swift and cost-effective conclusion of a dispute. Clogged dockets and a lengthy, often delayed and always contentious discovery process make taking full advantage of the mediation process in employment cases imperative.
Timing Is Everything
All cases filed in New Jersey state court and designated as employment cases are subject to mandatory, nonbinding mediation through the court’s complimentary dispute resolution program. In most counties, the referral order arrives approximately 60 days after the defendant’s answer is filed. One of the often-heard criticisms of this system is the sense that the parties are forced to mediate their case when they are simply not ready. The timing of any attempt to resolve a disputed claim is critical but this is particularly so in employment cases. If too soon in the litigation, the parties have insufficient information about the strengths (or weaknesses) of the other party’s position, are often firmly entrenched in an idealistic view of their own case, and are emotionally wrapped up in the case. If too late, the significant time and effort put into the case (and the resulting fees in these typically fee-shifting cases) can become an impediment to resolution.
