In an earlier post, we discussed the type of case that lends itself to pre-filing or pre-discovery mediation. But unless the key motivating factors needed for pre-suit or pre-discovery mediation are present, mediating employment cases after early, limited discovery provides parties with one of the best chances for expeditious resolution. It allows everyone to reduce the time and the costs involved to resolve a litigated employment dispute.

As lawyers, we know that it may be difficult or next to impossible to evaluate a party’s claims or defenses without some discovery. For an employee, the employer usually has the relevant documents and witnesses in its control. The employee’s counsel often recognizes the importance of serving requests targeted at key documents and deposing at least one key witness or company representative. This allows an employee to assess the risk of continuing litigation and shows that commitment to pursing evidence to support the claims.

For employers, deposing the employee is often critical to its defense and assessing the suitability of settling a case in a mediated process. This may be essential in “he said, she said” cases where witness credibility may be dispositive. An employer may also use the deposition to show an employee that litigation may be a long and difficult road; or that there are some issues that the employee had not anticipated.

Agreeing on some defined early, limited discovery, followed by prompt mediation is a good compromise to conducting full-blown discovery before discussing settlement. This will allow both parties to consider mediation at the front-end of a lawsuit, without appearing weak. In fact, it shows that each party believes in the strength of their case, but avoids protracted litigation and the animosity, distrust and bad feelings between parties that it may create.

Decision makers and their counsel should consider the benefits of early, limited discovery followed by mediation against the risk and uncertainty of going forward with full blown discovery and litigation, and then explore the opportunities and benefits mediation offers. As mediators and mediation advocates, we know that unless there are strategic reasons to wait, early, limited discovery followed by mediation is a perfect opportunity for great minds to meet to resolve a litigated employment or employee benefit dispute.