Prepared lawyers come to mediation with case authority or with information about jury verdicts in similar cases in hand. They will use it artfully to support their position, diminish the case of their opponent, or both. In employment law cases, there is usually no shortage of case authority or jury verdicts to which attorneys on both sides can point and use at mediation as they work towards resolution. This helps give the parties and their counsel some predictability as to possible future outcomes, as well as leverage at mediation.
With COVID-19 (COVID) employment cases however, this is not the case. The list of unanswered questions is endless. Are remote workplace arrangements automatically reasonable accommodations under the ADA post-COVID? Are terminations for refusing to get the COVID vaccine for religious reasons actionable? How does an employee show mitigation, or a defendant show a failure to mitigate, post-COVID?
Given the newness of these issues, there is little case law to guide parties, which in turn makes predicting possible outcomes particularly challenging. This increased uncertainty is why COVID employment lawsuits are especially well-suited for mediation.
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