Mediating the Employment Case: Trends, Tips and Tales-Mediating the Employment Case: Trends, Tips and Tales

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Elizabeth Libby Callan, an attorney and mediator, discusses why mediation is especially valuable at the end of the year, when clients and counsel are thinking about wrapping up matters or preparing for the new year. Drawing on her background as a litigator and former judge, she explains how she entered mediation during COVID, when court dockets stalled and she began mediating cases remotely.<br /><br />Callan argues that mediation offers major advantages over litigation: it is private, more flexible, often faster, and allows creative problem-solving that courts may not provide. She notes that litigation is becoming more crowded, costly, and uncertain, with rising budgets, heavier dockets, and fewer early settlements. Mediation, by contrast, can help parties control timing, costs, and outcomes.<br /><br />She emphasizes best practices before, during, and after mediation. Beforehand, lawyers should educate clients about the process, prepare thorough mediation statements, and think carefully about timing. She says mediation is often most productive in the fall and winter, especially when clients want closure before year-end. On the day of mediation, preparation matters: understand the roles of everyone involved, manage emotions, and decide in advance how the matter might be finalized, whether by term sheet, settlement agreement, or another format.<br /><br />Callan also discusses evidentiary protections like Rule 408, which shields settlement communications and encourages open discussion. She cites a case showing courts protect mediation communications from being used later in litigation. Throughout, she highlights the mediator’s role in helping parties feel heard, reality-testing positions without pressure, and addressing emotional and power imbalances, especially in employment disputes.

Keywords

mediation

settlement

litigation

year-end

Rule 408

confidentiality

attorney

mediator

employment disputes

case resolution