Tip from the Trenches --

 

After every mediation, I document my observations about the process, notable strategies employed by the advocates and the participation level of the parties. As mediators and advocates, we can all learn from listening to each other. As mediators, we are in the rare position to be able to hear from both plaintiff and defense counsel, and as counsel, you have the ability to share valuable information with the mediators, especially after the mediation. I take this information and incorporate it into my subsequent mediations.

 

In a recent case that resulted in a settlement, I had the opportunity to debrief the experience of the mediation with both attorneys afterward.  The case involved a sexual harassment and retaliation claim against a health care clinic.  It was a hard fought case, past summary judgment motions and only a month away from trial. Attorneys fees and emotional investment were high. Defense counsel conveyed early in the day that the clinic decided to create a human resources director position and was interviewing trained HR professionals to avoid similar problems in the future. Whenever I raised this point to the plaintiff and her lawyer, the message fell flat and seemed to have no effect. The parties eventually reached a monetary resolution after a long day of hard negotiation. On the ride home, plaintiff told her lawyer that the most meaningful aspect of the litigation experience was learning that she was making a difference at the workplace with the hiring of an HR director. Although the HR position was not part of the settlement, it serves as another reminder of the psychological importance of non-monetary components of employment mediations.  

 

After the mediation, defense counsel conveyed to me that his client needed the back-and-forth of the negotiation to emotionally process the reality of impending trial and the necessity of compromise. Upon the urging of plaintiff counsel, I requested a couple of times during the process for the defendant to cut to the chase and put up their best number to save plaintiff from the toll of protracted negotiations.  The defense resisted and we continued the long negotiation until completion. In this case the defendant needed the time and the intermediary steps to reach settlement.  Negotiations involve a delicate balance of timing and pace with the mediator ensuring progress without pushing too hard and potentially short circuiting the process.