Posted October 4th by Dave Smullin
In her blog, Phyllis Pollack extolls the need for preparation. I have the following suggestions for what that means. First, start early! Do so by identifying jury instructions applicable to your case. These are explicit guides to what you need to prove and where mediators may focus. Then identify local jury verdicts which demonstrate how juries have responded to similar cases.
Identify the sources of the proof you need. Analyze not just how each will be presented, but what objections you may encounter. A “smoking gun” document will do you no good if you have no way of introducing it into evidence, or if a motion ad limine will prevent you from doing so.
Focus on neutral witnesses and the potential credibility they would have to a mediator or to the other side. Write your mediation statements sparingly, focusing on your strengths and the other side’s vulnerabilities. Above all, tell your client’s story. The law is interesting, but stories are more so. Address your obvious weaknesses thoughtfully, but avoid exaggeration.
Look for opportunities to seek agreement on relatively minor matters. Outside career counseling or agreed-upon responses to pre-employment inquiries are not only inherently valuable, agreement on them creates investment in the process and the momentum which regularly leads to a complete settlement. Prepare your client. Take time to explain what mediation is, how the process works and how to respond to the mediator’s questions. Have a plan for your offers or demands. Each mediation has a focus and flow of its own, so prepare your client for the unexpected. Plan for you and your client to work late; doing so does not guarantee a settlement, but it makes it more likely.
Posted in Mediation Preparation, Emotion in Mediation, Mediation Practice
Posted September 19th by Dave Smullin
Mediation is confidential, deliberative, quick and private. Today, employers and their supervisors have an intense interest in avoiding media attention. Mediation focuses on facts and their significance at trial, not on allegations. A mediation date can be arranged in weeks versus a realistic trial date usually over a year later. Mediation participants are limited to the parties, their lawyers and the mediator rather than a courtroom full of staff, potential jurors and the general public.
The swift and seemingly indiscriminate termination of some accused of harassment is generating fear of invalid allegations in managers and their families. They are in jeopardy now in a way that victims usually have been. What matters is that parties to allegations deserve the opportunity to explore what happened, what should have happened and what needs to happen, quickly and in confidence. For example, it may be true as in a mediation that I conducted, that an adulterous relationship was originally consensual. However, when that relationship ended, the accused continued to force his attentions on his former lover in ways that were clearly unwelcome. Pre-complaint mediation provided a quick, confidential way of resolving this uncomfortable, embarrassing situation. For the above reasons, mediation can be a valuable process, both pre- and post-complaint.
Posted in Workplace Employment, Sexual Harassment, Pre-compaint Mediation, Confidentiality
Posted August 3 by Dave Smullin
I read an essay, recently, on the "Wisdom of Native Americans" as applied to mediation. The author discusses fundamentals like “listening” and “respect” as well as less recognized values such as “compassion.” That analysis reminded me of a recent mediation where compassion transformed deep differences into a satisfying settlement.
The case involved a retail driver plaintiff who advised her employer that she had visited the Labor Commissioner in pursuit of overtime and expense reimbursements, including for some expenses which had not yet been submitted. She was then fired in part for insisting on payment before completing her work assignments. Thereafter, she sued for the overtime, unreimbursed expenses and wrongful termination.
The parties were far apart prior to the mediation, in part because the employer could not understand how it could be liable for overtime or expenses for which no documentation had been provided. The first three hours of mediation involved little progress. However, by focusing on what the plaintiff’s work life was like as her working relationship deteriorated, I learned that she had some personal experiences which were horrific. Suddenly her behavior appeared more understandable. In caucuses with the employer, while maintaining confidentiality about the facts, I shifted the tone of how I referenced the plaintiff’s behavior. Negotiations then substantially improved, resulting in an agreement on all issues. It was another example of the expression “The parties do not care about what you (the mediator) know, until they know how much you care.” Compassion had provided a major breakthrough.
Posted in Workplace Employment