As mediators and advocates quickly learn--frequently through painful experience--a mediation can be jeopardized or even derailed if unexpected issues or behaviors emerge without warning at the mediation session. In some instances, the problems could not have been anticipated. In other mediations, however, and especially in employment mediations, there are recurring types of problems and behaviors that arise, at least in part, as a result of the fractured employment relationship and the emotions that the rift engenders. Awareness of these potential mediation rough spots enables the advocate and the mediator alike to develop strategies that may be effective in defusing the problematic issues and permit constructive discourse to continue.
In the scenarios below, we outline five problem spots that occur with some frequency in employment mediations and suggest steps that plaintiff's counsel and the mediator can take to cope with the problems and prevent the failure of the mediation.
Introduction
This is the mediation of an employment claim brought by a female broker at one of the major financial services firms. She claims that, as the only female broker on the desk, she has been given less lucrative accounts than the male brokers and has been discriminated against in other ways. The defendant financial services firm denies that she has been subjected to disparate treatment and argues that any problems she has faced are the result of her own inability to get along with her supervisors and colleagues. There have been discussions in the past between your client and her supervisors to try to find a solution, but to no avail. A few months ago, plaintiff reluctantly brought suit.
Although plaintiff has filed a claim in court, she very much wants to remain as an employee of the firm, albeit with the "problems" corrected and with compensation for the opportunities she has lost. The defendant firm has not ruled out the possibility of a continuing relationship, but, unbeknownst to plaintiff, is much more interested in having her leave the firm with a financial package.
The situation has deteriorated to the point that plaintiff and her supervisor do not even talk anymore. You, as plaintiff's counsel, had a good relationship with the defendant's inside counsel during the time they were trying to find a solution. Once litigation was filed, however, an outside litigator was brought in to defend the firm, and the relationship between counsel has deteriorated.
1) The Balky Plaintiff
Moments before the mediation is to begin, plaintiff tells her counsel that, because of recently heightened tensions, she cannot bear to be in the same room with her supervisor and will abandon the mediation, if necessary. How should this be handled by (a) her counsel, and (b) the mediator?
Ideally, plaintiff's reluctance to participate in a joint session will surface before the day of the mediation so that arrangements can be made in advance. A refusal at the mediation, without warning, presents a challenge. As a first step, counsel should immediately alert the mediator. The mediator, in turn, after informing opposing counsel of a short delay due to an issue that requires attention, should sit down with plaintiff and counsel to assess plaintiff's concerns, clarify misunderstandings, explain the rationale for a joint session, and explore alternatives.
The mediator must try to find out what is motivating the plaintiff. Is she uncomfortable at the prospect of speaking in front of her supervisor or the other representatives of the defendant? Or is she uneasy about what her supervisor or other defendant representative might say? Is she concerned about controlling her emotions?
Once plaintiff's concerns are understood, possible solutions can be explored. For example: if plaintiff is willing to participate in a short joint session, the session can be condensed. Although the mediator may customarily cover preliminary matters, such as confidentiality and mediation procedures, at the joint session, those issues can be discussed in separate meetings and the parties brought together for a brief, focused discussion of the more important issues in the case. Alternatively, plaintiff can be assured that she is not required to speak or respond to what she hears from the other side. If plaintiff is concerned about particularly emotional or painful issues, there might be a way to address them in a low-key or oblique manner.
If plaintiff is adamant in refusing to participate in a joint session but otherwise wants to go forward with an effort to resolve the dispute, the mediator should address the matter with the defendants in a way that minimizes any disruption and continues to maximize the chances for a productive session.
2) Insulting Counsel
Despite the mediator's efforts to establish the correct tone for the joint session, and despite your own civility, defense counsel uses the opening statement to make repeated personally negative comments about the plaintiff. Plaintiff is becoming visibly upset, and appears to be on the verge of walking out.
With an attentive mediator and alert counsel, the situation can be prevented from reaching the boiling point. At the outset of the joint session, the mediator should establish ground rules and make it clear that insults and destructive comments are counterproductive. At the same time, the mediator should let the parties know that they are likely to hear comments that they disagree strongly with and may even find some comments unpleasant. Nonetheless, if statements are made that are recognizably insulting and derogatory, it is the mediator's obligation to steer the speaker - through a surprised glance or mild comment - in another direction and away from continuing in the same vein. If the speaker does not get the hint or chooses to avoid it, more direct measures are warranted - such as calling a break and asking the speaker directly to change focus or defer certain issues for private discussion.
But what if the insult is subtle, and not recognizable as such except by plaintiff and you, her counsel? Vigilance is key. Plaintiff's counsel must alert the mediator quickly that something destructive is occurring - through a meaningful look, a touch of the hand, or a brief note. If there is no chance to send a signal to the mediator in a subtle way, or if the mediator does not understand, or if the remarks continue, plaintiff's counsel may need to step in and intervene directly. This can be done in various ways, including asking that everyone adhere to the mediator's ground rules, telling the offending speaker that it would be more productive to focus on another issue or use different language, expressing the hope that painful characterizations could be avoided, or asking the mediator for a break during which the issue may be discussed directly.
3) Inconsistent Objectives
During the first set of caucuses, it has become clear to the mediator that each party is inflexible in terms of the goal for the mediation. Plaintiff wants to discuss the parameters of a continuing relationship and obtain some compensation for the past, while defendant wants her to leave. The mediator is concerned that when plaintiff understands what the defendant wants, she will consider the mediation a failure and walk out.
As a first step, you should work with the mediator to discuss with your client what all of her options could be, including staying in the same position with the protections she seeks, staying in the same position with other, perhaps less satisfactory protections, transferring within the firm, or even leaving. The mediator may encourage both parties to brainstorm options either together or privately with him or her; you should encourage your client to participate in that exercise. It may be that plaintiff would be willing to accept alternatives other than the favored one. If plaintiff threatens to leave once she hears of defendant's goals, you should cooperate with the mediator in encouraging her to stay, at least long enough to have explored the parameters of the financial package that defendant might offer her. In addition, you should encourage her to allow the mediator to explore alternatives other than the ones initially announced by the parties.
Together with the mediator and the client, you should assess the most effective way to negotiate so as to ascertain the best financial package that defendant will offer (and to make it otherwise most responsive to plaintiff's concerns and needs), and also to ensure that defendant has fully explored the parameters of plaintiff's favored result. You should discuss when and how to put on the table the variation on plaintiff's proposal that might be most attractive to defendant.
If, in the end, defendant is insistent that plaintiff leave, and if defendant has put a reasonable financial package on the table, you should ensure that plaintiff is aware of all the consequences of ending the mediation without an agreement. There are pitfalls and risks to both parties - beyond just the normal risks and costs of a lawsuit - in litigating while she is still employed at the firm.
4)The "Low-Ball" Offer
Plaintiff has agreed to try to negotiate a fair severance package, in return for which she would leave the firm. She continues to assert, however, that she does not want to leave and that defendant will have to pay her a lot of money to do so. She makes an initial demand that she believes is reasonable but actually is much too high. Defendant makes an offer that, while too low to settle the matter, is not unreasonable. Defendant, through the mediator, however, signals that it will not make any further offers until plaintiff's demand comes down to a reasonable range.
If you have not done so already, you should now have a discussion with plaintiff, with or without the mediator, regarding her target number. This number should reflect plaintiff's financial needs during the period of time she might be out of a job, as well as the probable outcome of the litigation discounted by the risks and costs of the case. While it may not be advisable at this point in time to push the client to come to a "bottom line," she should at least agree with you on a reasonable goal.
Once a reasonable goal is established, it may be easier to develop a rational negotiating strategy. The strategy should be geared towards maximizing the chances of obtaining in settlement the target number or better. The mediator may be helpful in developing such a strategy, though you should be careful not to disclose to the mediator the bottom line at this point, assuming plaintiff has one.
If plaintiff balks at making a reasonable next demand, you should, in conjunction with the mediator, help her understand that the defendant may react adversely to a number that is still unreasonably high. While the mediator is likely to be helpful in keeping the defendant at the table, it is not in the plaintiff's interest to have the negotiations stall, even temporarily.
It also may be appropriate at this time to let the mediator take the lead in pressing the client. Most mediators will be respectful of the client, and may be in a better position than you to push the client.
5) The Mediator's Proposal
In order to break an impasse, counsel have agreed to let the mediator make a "mediator's proposal." The mediator recommends a number that the mediator believes to be fair and reasonable under all the circumstances, as well as one that should be doable. Your client has accepted the proposal, but defendant does not. Under the ground rules of the "mediator proposal" procedure, the mediator does not advise the defendant that plaintiff has accepted the proposal.
Your first decision is whether to allow the mediator to disclose to the defendant that your client has accepted the proposal. The advantage of doing so is that it might put more pressure on the defendant to accept the proposal now that it is aware that the number can actually settle the case. The disadvantage is that if the case does not settle, this number may now become a ceiling to subsequent negotiations. One way of trying to mitigate that risk is by explicitly removing from the table if it is not accepted by defendant within a few days thereafter.
If defendant still does not accept that number, but appears willing to go up from its prior offer, you should assess with plaintiff whether you want to continue negotiating. It may be that while you accepted the mediator's proposal, you would have taken less if the recommendation had been less. Under these circumstances, you should probably be willing to take a lower number now. Even if you had not been prepared previously to take a lower number, you should encourage the mediator to remain active, at least to find out the top number defendant is prepared to offer. It is also possible that continued negotiations will result in a creative impasse-breaking possibility.
Conclusion
All of the "rough spots" discussed above are drawn from our own experiences in mediating employment matters. Many others could be added to the list. Vanishing offers and escalating demands, for example, though not unique to the employment context, pose special problems in a work-related mediation where emotions and antagonisms may already be in a heightened state. Not surprisingly, rough spots are most effectively dealt with through anticipation and prevention. Even with the best of planning, however, surprises do occur in mediation. When they do, the best advice is: be alert, be flexible, enlist the mediator's help, and, above all, keep your sense of humor.
Copyright 2002 The Employee Advocate. Reprinted with Permission.