The Local Civil Rules for the U.S. District Court for the District of South Carolina require that all civil cases be mediated with prior to trial. As many, if not most, types of employment cases are litigated in the federal courts, there is a good chance that you will attend mediation at some point in the course of your employment case.

Mediation is an informal and confidential method of resolving employment disputes with the assistance of a neutral third party mediator. In the setting of employment litigation, the mediator is usually an attorney and it can be very beneficial if the mediator has knowledge and experience in the field of employment law. The mediator is not a judge or an arbitrator and his or her role in mediation is not to decide who is right or wrong or to make a ruling on the merits of the underlying case. The mediator’s role is to help the parties reach an agreement on how to resolve a case. Generally, there is no requirement that the parties resolve their case in mediation and, if the parties are unable to settle, the case then moves on to or proceeds with the next stage of litigation.

Generally, the mediation will begin with both parties and their counsel in the same conference room and with the mediator explaining the process. This explanation will usually include a discussion about confidentiality and will be followed by the parties signing a mediation confidentiality agreement, which basically requires the parties to keep all settlement discussions that occur during the mediation confidential. Agreements of this nature usually prohibit the parties from utilizing statements made in the mediation as a part of the case and assure each side that the mediator will not and cannot be called as a witness in any litigation.

What happens next in the opening portion of the mediation is really up to the mediator. Some mediators will ask each party to explain their side of the case. Some mediators will ask each party to state their proposed resolution of the conflict. Some mediators do not allow opening remarks by either side and put the parties and their counsel in separate rooms after explaining the mediation process. Some mediators begin the mediation with the parties in separate rooms and explain the process separately to each side rather than with the parties together as a group. Regardless of how the mediator chooses to begin the mediation, the parties will be placed in separate rooms after the mediation gets going and the mediator will meet with each side separately to discuss the strengths and weaknesses of the case and to encourage settlement and discuss the potential ways in which the case could be resolved. The mediation will proceed with the mediator privately discussing the case and discussing potential resolutions or offers with each side. The mediator will convey any such resolutions or offers that a party agrees with to the other side and so on.

If the mediator is able to resolve some or all of the case, the mediator will generally summarize in writing the terms upon which the parties were able to agree at mediation and have each side sign the same. Such informal, and often brief, mediation agreements are typically enforceable if they are signed by all parties and contain the basic terms of the settlement agreement reached at mediation. After the mediation, if the parties reach an agreement, they will usually have to finalize the agreement in a more formal and detailed written settlement agreement.

Mediation can be a great way to resolve employment disputes before or after litigation commences. In mediation, both parties have at least some control over the ultimate outcome of the case. Such is not usually the case when matters are resolved in court by a judge or a jury.