Workplace discrimination claims and defenses involve specific laws. Attorney involvement is pretty high. The process of resolution of a discrimination case can be a long one. An employee has often been let go, fired, or moved on. Emotional tolls on both sides can be high.  Ok emotions are probably not as high a level as in divorce but emotions are still in play.  Mediation offers a great chance to resolve claims rapidly.  As a mediator in employment discrimination cases, using a facilitative approach, with attorneys representing Plaintiff and Defendant, I find it challenging to gauge and act on whether the road to meaningful negotiation hinges on recitation of the facts by aggrieved party and rebuttal by the employer or whether facilitating discussion about the legal basis of the claim and defense will be more productive.

1.      If I ask the attorneys to explain there respective positions they jockey to present their adversarial themes. This may help their clients to better understand the legal basis their attorneys are advocating. In addition I find it is more likely the attorneys will more quickly disclose their respective demand and counter offer (if there is one). I think attorneys find making an offer and counteroffer more natural after they present what their case is about. They do sprinkle in certain facts favorable to their clients position. They provide a framework for a case. The main challenge for a mediator can sometimes be to keep them from interrupting each other.

2.      On the other hand if the approach taken is to ask Plaintiff client to state their claim it is not unusual for them to put their case forward with a lot of emotion and focus on the wrongs perpetrated on them by their opponent, for example the supervisor.  They focus on attacking their opponent, often personally.  These personal attacks may sour the road to progress. However, venting in this fashion may be just what one side or the other needs before productively negotiating.

I believe mediators and attorneys will debate whether and which approach is more productive.  Maybe it is case specific. Maybe a balance can be struck between the two, the legal and a client’s perspectives. There may be other approaches.  One more note, when it comes to the money, once the parties know there is an offer and counter-offer a channel to resolution opens wider even when the sums are separated by orders of magnitude (e.g. P asking for $100K while D counter-offering $2K). The challenge for the mediator then is to bridge the monetary chasm (ideas on how to do that will have to be the subject of another blog entry).

One potential clue where to start is who’s doing the talking for each side.  If it’s the attorneys, they will be advocating and the opposing attorney will put forward his clients legal position. The result will be an issue or issues.  Should a legal exchange take place a challenge for a mediator, especially one not trained in the law becomes, what does a mediator do with the information?

One simple approach is for the mediator to summarize what each attorney has advocated and convert the legal difference in interpretation into a common problem statement.  For example in a disability claim one attorney may argue the condition is a disability covered by the laws while the other argues it is not. This is a basic issue having an impact on moving to negotiation. To facilitate movement towards negotiation a mediator might say “Plaintiff’s case is that their condition is a disability covered under …. while Defendant’s case is that Plaintiffs condition is not a disability covered under … In order to reach agreement each side is going to have to consider to what extent this difference in legal opinion influences their negotiating position.” As always the decision whether to continue further discussion on an issue like the example is left to the clients and their attorneys but at least an issue is aired in front of the clients with an opening for the attorneys to continue their discussion if they feel it is productive.

When there are multiple legal questions and issues involved in these kinds of cases it becomes more difficult to just simply summarize and identify a legal difference as an issue.

If, however, it’s clear the client acting under the attorneys advice is going to do the talking about the grievances they have I stand ready to listen to understand their perspective, reframe, reflect, and reduce their respective positions into a common problem statement. Using the same example, a disability discrimination case, I might reduce what is stated into “Plaintiff is claiming they were fired because of their disability while the Defendant is claiming the firing was solely because of poor performance. Plaintiff is requesting money damages of $... and reinstatement while Defendant is offering $... but not offering reinstatement.” In addition I have to be ready to deal with the character issues which will come up about the other side’s client.  Positions can get dug in worse when there are character attack salvos between the parties. Part of the mediators challenge is to know, and whether to react to personal attacks which become more global in order to keep a client focused on their discrimination claim.  It also becomes a question as to what to do with the personal attack information?  For example if a party recites their opponent is a dirty no good rat who should be fired and banned form ever working or supervising again and he also cheats on his wife, it may not be a good idea for the mediator to reflect that sentiment .  On the other hand failure by the mediator to reflect these sentiments may offend the reciting party to the point of intransigence.

If a mediator is like me, predominantly a problem solver, in workplace discrimination cases involving attorneys one approach may be:

·         Where are we in the process of resolution of this claim?

·         Is the attorneys or the client going to do the speaking and who is going to do the negotiation?

·         If the client is going to speak proceed to an exchange of grievances.

·         If it is the attorneys what is the theme or the legal basis for the claim and what issues do they see in each others claims?  Let the discussion at least get to the issue identification stage.

·         Is there a money damages claim and counteroffer and authority to accept or reject offers and counteroffers?

·         If the parties and their attorneys acknowledge the problem statements are indeed reflective of their legal positions determine with each side whether there is any point in delving further into the legal issue as a means of moving towards negotiation.

·         An exchange of grievances regarding the claim and defense and identify the issues involved. Formulate problem statements on the issues and what needs to be resolved to move towards negotiation.

·         Negotiate on the issues until such time as the parties are ready to resolve.

·         Reaching agreement, discussing BATNA, not yet ready to resolve (schedule a follow-up session and outline what will be mediated).

Discrimination cases are at times a question of economics but underestimating or ignoring the legal issues involved in these cases is risky to reach the point of negotiating resolution.  With attorneys present encourage client’s attorneys to discuss their legal themes and differences they have with the others case to expose issues which impact their willingness to negotiate. If the attorneys and their clients have decided their client is to take the lead listen to their grievances. When clients only speak there is a risk that there are unstated legal based differences which will impact not only a willingness to negotiate but potentially doom the mediation. In addition recitation of grievances in these types of cases often take on a tone of being personal with increasingly global attacks on character creating further resentment and building intransigence in positions. One last thought on the benefits of flushing out the respective legal basis in workplace discrimination cases is that these discussions also create a framework around which to base and focus the discussion, but that may be a topic for further discussion in a future blog entry.