Originally from Alternatives to the High Cost of Litigation

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It’s 7:00 p.m., and after a long hard mediation, the case has settled. The plaintiff prepares to move on with his life. The defendant’s representatives, the lawyers, and the mediator promptly turn to their next task. And everyone breathes a sigh of relief—perhaps too soon.

In employment mediation practice, instead of being the beginning of the end, the handshake agreement often merely signals the end of the beginning. 

Informal resolution too frequently serves only as a prelude to quarrels over what exactly was agreed to, delays in delivery or signature of the formal documents, pitched battles over boilerplate language, and neglect by the company to follow up with punctual payments. 

At times, attorneys’ inattention to their clients after the mediation session allows employees to become disaffected, or managers to act in ways perceived as retaliatory. The bad feelings caused by post-mediation failures in follow-up and communication can derail hard-won settlements. Derailment can also result from simple procrastination, as parties fall prey to settlers’ remorse.