In my opening statement at the start of each mediation, I emphasize the importance of flexibility. Parties and their advocates should strive to have their perspective shift during the process. I warn against participants coming into a mediation with a fixed narrative of what the case is about and a set idea of what will get the matter resolved. In mediation where parties adhere to a never-wavering perspective, they lose the benefit of the process and risk a failed mediation.
A mediation is an organic process centering on the exchange of information. Equally important to conveying your perspective through the mediator is listening with an open mind to the other side's perspective when the mediator returns. Everyone should strive to understand the other side's perspective and how they might have arrived at their perspective even if you disagree with it. Your evaluation of the case should remain fluid as the information exchange and the discussion proceed. As you learn new facts or review new documents, your perception of existing facts. You might recognize another angle from which to view the facts. Your evaluation of your own case or the other side's case can change based on myriad of factors. It is essential to remain flexible and allow your perspective to shift as you factor in new information.
In a recent mediation the documents and declaration provided by a key witness had a marked impact on the the case evaluation. The plaintiff claimed egregious sexual harassment at the hands of a restaurant manager who allegedly threatened his young female subordinates with termination for complaining to the district manager or to human resources. This plaintiff claimed she was terminated after she objected to the unwanted sexual advances the manager made towards a coworker. The defendant restaurant chain denied a hostile work environment and asserted that it responded promptly and appropriately to all complaints that made their way out of that particular restaurant. An internal investigation did not reveal corroboration or any evidence of other complaints about his behavior. The new information shared at the mediation included a declaration of the former assistant manager of that restaurant and several written complaints she'd made about the sexual antics of the manager. The complaints were made on the proper corporate form, signed, dated and forwarded via e-mail to the regional manager. In the exit interview form she filled out when she resigned to pursue other employment, she stated that the reason she was leaving was because she could not handle the "hostile work environment and the sex jokes" of the manager.
While it was an early mediation, the defense representatives were stunned at never having seen the documents in their work up to the mediation. Evidently the regional manager involved at the time was no longer employed by the defendant and did not pass along the documents to his successor. The HR representative who conducted the exit interview went on an extended medical leave soon after the interview and failed to pass along the issue to her replacement. It was a perfect storm that allowed the defendant to assign a low value to the case at the start of the mediation. The case settled for a significantly higher settlement amount than the defendant had envisioned. Resolution would have been unattainable had the corporate HR representatives, risk manager and counsel not been able to re-evaluate the case in light of the new and damaging information.
Flexibility is key to making the most of the mediation process. Allowing a fluid case assessment as you receive new information and allow your perspective to shift will help guide the case toward resolution as opposed to impasse. While some re-evaluations are not as dramatic as in the example above, in all mediations perspectives must shift to allow the parties to compromise and reach resolution.
