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Suppose that you are the HR manager for a company. The judge in a current law suit by a former employee has ordered mandatory pre-suit mediation. Your boss is unfamiliar with mediation and she asks you to advise her as to several issues regarding the upcoming mediation. Draft a memo thoroughly discussing, at minimum, the following questions:
What are the advantages and disadvantages of mediation? Is it likely to be successful? Is it likely to make the parties more or less hostile toward one another? How do the costs in terms of time and money compare with litigation?
If your boss has no interest in mediation, does she really have to be there? Can she send her attorney instead? If so, are there any conflicts of interest with respect to attorney advocate representation of which she should be aware?
Must the company actually participate in the mediation? Can your boss (or her attorney) just sit there and refuse to speak?
If your boss (or her attorney) does decide to engage in dialogue during the mediation, what are the risks concerning information that might be disclosed? If the mediation fails, can the former employee use such information at trial?
Here are guidelines for drafting the HR memo regarding mandatory pre-suit mediation:
Memo Format Guidelines:
- Heading:
- Include a subject line with the nature of the memo (e.g., “Guidance on Pre-Suit Mediation: Legal Concerns and Company Participation”).
- Include a “To” line indicating the recipient (e.g., “To: [Boss’s Name], [Title]”).
- Include “From” (HR Manager’s Name), “Date” (Current Date), and any other relevant info like CC or BCC.
- Introduction:
- Provide a brief introduction (one or two sentences) explaining the context of the memo.
- State the purpose of the memo, which is to clarify the process and implications of pre-suit mediation for the company.
- Key Issues to Address:
- For each question provided, address the issue in a clear, structured way. Break down the points logically so that they are easy to read and understand.
- Body of the Memo:
- Advantages and Disadvantages of Mediation:
- Discuss the pros and cons of mediation compared to other forms of dispute resolution.
- Mention factors like cost, time efficiency, control over outcomes, confidentiality, and less adversarial nature of mediation.
- Consider possible drawbacks such as lack of enforceability, no guaranteed resolution, or potential for unequal bargaining power.
- Likelihood of Success:
- Address the chances of mediation leading to a successful resolution, considering factors such as the nature of the dispute and willingness of the parties to compromise.
- Impact on Hostility:
- Discuss whether mediation is likely to reduce or increase hostility between the parties.
- Consider how the atmosphere of mediation (collaborative vs. adversarial) may influence the relationship.
- Cost Comparison with Litigation:
- Compare the time and money involved in mediation with litigation.
- Highlight factors like legal fees, time commitment, and other resources for both processes.
- Boss’s Participation:
- Discuss whether the boss must personally attend or can send an attorney instead.
- Explore the potential for conflicts of interest or ethical concerns if the attorney represents the company’s interests in a mediation process.
- Mandatory Participation:
- Clarify whether the company must participate actively or if it’s possible for the boss or attorney to remain passive.
- Explore whether non-participation could be legally or strategically detrimental.
- Risks in Dialogue During Mediation:
- Discuss the potential risks of disclosing information during the mediation that could be used against the company later if mediation fails.
- Address whether statements made in mediation are admissible in court and how this could affect the company’s case.
- Advantages and Disadvantages of Mediation:
- Conclusion:
- Summarize the key takeaways and provide any final recommendations, based on the analysis above, regarding the company’s approach to the mediation.
- Sign-off:
- Close with your name, title, and contact information for follow-up questions.
Content Guidelines:
- Clarity:
- Use clear and concise language. Avoid jargon unless it is essential, and define any technical terms that are used.
- Tone:
- Professional, neutral, and informative tone.
- Be empathetic to your boss’s lack of familiarity with mediation, but also assertive and thorough in your explanations.
- Research:
- Ensure that your analysis is based on accurate and current legal information.
- If appropriate, reference relevant laws, policies, or precedents, but remember this is an internal memo, so don’t go into excessive legal detail.
- Keep your references short and relevant.
- Format:
- Use bullet points or numbered lists for clarity where needed (e.g., advantages/disadvantages, steps, etc.).
- Maintain APA formatting where applicable, especially for references.
- Use headings or subheadings to break the content into sections for easier readability.
- Length:
- The memo should be concise but thorough, aiming for 1-2 pages in length (approximately 500-700 words).
- Citations:
- If referencing external sources for legal definitions, court cases, or other external research, be sure to include them in APA format at the end of the memo.
By following these guidelines, you will create a comprehensive, professional memo that addresses your boss’s concerns about mediation in a clear and informative manner.
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