Tip from the Trenches -- 
Where a litigant is motivated by a core value or other principle, it is essential for the underlying conviction and emotions to be fully explored for that party to be satisfied with a negotiated resolution and avoid feeling defeated.
Employment litigation can be difficult to resolve when the parties are deeply emotionally invested in the dispute. Whether it is a former employee who feels his identity was irreparably damaged by his termination or a business owner who sees an employment discrimination claim as an attack against her personally, emotions typically run high in employment litigation. In certain cases where the parties are driven by principle, rather than practical realities, emotions tend to run even higher, making the mediation of such disputes more complicated, nuanced and often volatile.
When parties in litigation are driven by principle or what they identify as a core value, they may view the realities of litigation and other practical considerations as unimportant or may even disregard them completely. In the minds of such parties, the risks, costs and delays of the litigation process each represent a small price to pay to protect what are characterized as more important foundational values. In this mindset, compromise for the sake of settlement is akin to rejecting one's own fundamental values. To reach resolution it is necessary for attorneys and mediators to identify and carefully address the client's underlying principle or value driving the litigation. Ideally, these issues would be discussed initially in the pre-mediation phone call between the mediator and each attorney.
Taking principled stances can play a part in all kinds of litigated disputes. In my practice, they arise most often in religious, pregnancy and national origin discrimination cases. In these cases, plaintiffs litigate not only to seek damages they believe resulted from discrimination but also to protect their cultural identity, to assert the legitimacy of their religion or to vindicate the rights of their children. Where parties battle on behalf of an entire country or culture, on behalf of another entity or person, or on behalf of a set of religious beliefs and values, it is with great struggle that they adjust their perspective, which is a necessary step towards resolution. Without a full exploration of their underlying emotions and convictions, parties often feel defeated or possibly equate compromise with betrayal of the person or entity they are fighting to protect.
In two recent pregnancy discrimination cases, the plaintiffs viewed the alleged discrimination as direct acts not only against themselves, but against their newborn children for whom they had to fight and seek vindication. In one case, the plaintiff, a new mother of a healthy 13-month old son, compared herself to an angry mother bear protecting her cub. She refused to make another move during negotiations because further compromise meant abandoning her son who she felt needed her for protection and vindication. She needed a full exploration of the principle fueling her lawsuit in order for her to continue negotiating towards settlement.
This discussion gave her the opportunity to fully explain her right to become pregnant and continue working, her frustration and shame surrounding the workplace tension during her pregnancy and her deep conviction that she must remedy the damage she felt was done to her son. The discussion required her attorney and me as mediator to understand and authentically validate her conviction and the emotional investment in the lawsuit. Only after this full discussion and the related emotions were identified and expressed could she even begin to listen to practical concerns and the realities of litigation. Most importantly, she was finally able to understand and accept that a financial settlement and an end to the litigation would best allow her to care for, bond with and continue to protect her son.
To reach settlement in these cases it is essential first to identify the principle driving the battle and allow the party to fully express and explain the motivation. Next, the party must feel validated and affirmed in her desire to vindicate the harm done to the separate entity or person. Only then can the attorney and mediator address the weaknesses of the case, the realities of litigation, or that litigation -- even if wildly successful -- may not fulfill the party's underlying emotional need as effectively as a negotiated settlement.
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Recent Articles
In a recent article in the New York Times, Benedict Carey writes about the effect that emotions have on disputes. As applied to mediations, a good use of "instrumental emotions" will help negotiators achieve a better result.
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