Tip from the Trenches --

Take special care with recent immigrants before and during mediations to carefully address their emotions and possible misunderstandings about their legal rights, employers' duties under the law and the realities of the U.S. justice system.   

 

I've conducted dozens of mediations over the years involving plaintiffs who are immigrants from despotic homelands and have left (or fled) a culture rife with civil rights abuses and weak justice systems. Often they are recent arrivals navigating a new culture, a challenging climate,  a foreign language and a completely different legal system. Despite these profound and fundamental differences, they  U.S.  They have a set idea about our laws, constitution and the judicial process, especially when compared to the country from which they came. These issues must be addressed directly and compassionately to avoid impasse in mediation.  

 

In a recent mediation, the plaintiff, who had been raised in a former Soviet-bloc country, held strong convictions about what should "never happen in America." He had some supportive evidence to support his belief that he'd been singled out and discriminated against by his employer because of his national origin. The disparity between his high expectations of equality in American society and his experience of those not being fulfilled led him to conclude his employer's actions were unjust and unlawful. He reiterated that this experience of being singled out is exactly why he left his homeland where he was an ethnic minority.

His case also had significant weaknesses that, because of his clouded lens, he was unable to recognize. The plaintiff counsel and I needed to provide explicit information about the realities of his case and the American legal process. We encouraged him to engage in a full discussion of his righteous emotions and disappointments.  Only after this process of venting and being educated could the plaintiff make an objective decision about settling his claims and negotiate with full information. 

Similarly, in another case, a recent immigrant from an African country claimed religious discrimination when his employer failed to accommodate his need for prayer breaks. The employer stopped allowing the breaks once the high production season began. While the employer could have handled the situation with more finesse when altering its policy, the employer could also easily establish an undue hardship if forced to allow prayer breaks during the high season.  This plaintiff held a strong conviction that his fundamental religious freedom had been violated based on his belief that his religious freedom in the U.S. was absolute. Again, to reach settlement the plaintiff's strong emotions had to be aired and validated. Only after he had the sense of being heard could he be educated about the limits of his religious freedom, the duties of the employer and the realities of the litigation process.   

The typical plaintiff in this situation has strongly-held ideas about her substantive rights under our legal system -- ideas which may be at odds with reality. Their beliefs about our justice system and its procedures are also based on idealistic views and not on the actual functioning of our litigation process. The huge gulf between the freedoms and protections they expect in the U.S. and what they experience in the workplace, leads to intense emotions and strong, righteous convictions. Preparation and education with your client and allowing for more time for this continued discussion during the mediation will help achieve resolution.  The discussion must validate the plaintiff's emotions and educate to guard against continued disappointment and  disillusionment for your client.