Maisano Mediation Newsletter  
November 2014

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Happy Election Day. I hope all is well with you.

In a recent employment mediation I observed the transformative power of a face-to-face discussion between a plaintiff and a company representative. The direct communication allowed the company, through its in-house counsel, to apologize and empathize with the plaintiff who had been sexually harassed by her boss, then swiftly terminated after she complained. The in-house counsel acknowledged that what the plaintiff experienced should never have occurred and that the treatment and ultimate termination had a huge impact on her well-being and career advancement. This authentic communication allowed the plaintiff to feel validated and it helped pave the way for open and genuine communication from plaintiff.

As I explain in Tips from the Trenches, this type of communication achieves several important purposes. It reduces the likelihood of "reactive devaluation" during the ensuing discussion and negotiation. The direct apology and validating communication allows the plaintiff (and defendant)  to reach a more satisfying resolution and to achieve a true sense of psychological fairness in the process.

Enjoy this beautiful and dramatic fall weather. I look forward to seeing you and working with you soon.


Best regards,


Nancy Maisano 


Tip from the Trenches -- 

Take advantage of an opportunity for your clients to engage in direct communication during a mediation. An apology and authentic, empathetic statements to a plaintiff can  avert negotiation pitfalls such as reactive devaluation. Thoughtful, direct communications  allow both parties to step out of their positional stances and pursue meaningful resolution and more satisfying closure.  

Often attorneys in mediation are wary of direct communications between their clients at mediation. Plaintiff counsel understandably do not want to "pay for" an apology by being expected to accept a lower settlement amount in exchange for an orchestrated communication from a company representative. Defense counsel fear that validating the plaintiff's emotions simply fuels the fire and keeps monetary expectations high. My experience suggests that thoughtful, targeted communication by the right person at the right time during a mediation helps both parties. Plaintiffs and defendants greatly benefit from the face-to-face discussion.

In many mediations, an opportunity for a transformative direct communication is simply not possible. Sometimes the trust between the parties is far too damaged for a face-to-face discussion to be productive during a mediation. The company representative to communicate with the plaintiff must be far enough removed from the "bad acts" and the "bad actors" for the apology to be effective. In addition, the direct apology must come early in the dispute and before an extensive (and often destructive) discovery process for it to be significantly impactful. A meaningful face-to-face apology loses its power (and credibility) once the parties have begun to battle each other in depositions and trial preparation.

When the variables are in place to allow for a direct communication, I have observed repeatedly that defendants' apologies transform the discussion by alleviating the emotional intensity of the ensuing discussion and negotiation through validation. In a recent mediation, an in-house counsel wanted to communicate to the plaintiff that he and the company do not condone the behavior of her former boss and that the manner in which she was terminated was far from ideal. He wanted to directly apologize and take responsibility on behalf of the company, which he did in a brief 15-minute joint session. The in-house counsel acknowledged that the plaintiff deserved better communication and an explanation of the company's actions during the weeks leading to her termination. He recognized that when no one circled back to her after her complaint to HR, the company missed an opportunity to correct the situation and avoid a significant impact on her. He pointed out that while the negotiation will focus on the litigation value of the case (accounting for the risks both sides face), he  did not want the negotiation to diminish the value of the significant impact the events had on her career. The plaintiff took the opportunity to explain the damage to her self esteem and reputation of being terminated from the largest employer in the industry.
For those of us who have litigated employment cases for years, it's easy to be cynical and to underestimate the positive impact that such direct communications have on both parties in a dispute. In this case, the plaintiff and the in-house counsel felt heard, understood and validated by the other. They connected in a human and genuine manner -- in an authentic discussion that is a complete anathema to litigation.  When both parties feel understood by the other (even if only on the single issue of how the termination impacted the plaintiff's reputation), the cognitive biases that often interfere with a negotiation can be averted.

A common cognitive bias is "reactive devaluation" in which a party to a dispute views a proposal less favorably simply because it was proposed by the opposing party. However, when a party feels understood and validated by the other side, that party is less likely to succumb to reactive devaluation and the negotiation stands a better chance to flow smoothly and reciprocally.   

In addition, validation of the plaintiff's experience and the negative impact of the workplace problems and/or termination allows the plaintiff to achieve a sense of psychological fairness in the mediation. Along with achieving procedural fairness and substantive fairness, psychological fairness should be a goal of the mediator and the attorneys to help both parties achieve. If a plaintiff's emotions are understood and validated by the process and (where possible) through direct communications with the other side, the settlement discussions and the ultimate resolution are more likely to feel fair.

In my experience, though they may be new to the process, many parties in a litigated dispute yearn for the kind of communication that can happen only in mediation. When variables are in place that would allow such communications to take place, the parties leave the mediation with a strong sense of satisfaction, a deeper sense of closure and a more durable settlement agreement.

Take advantage of the opportunity in mediation for your clients to have meaningful and direct communication with each other when possible. Where your client has an underlying need for more understanding or affirmation, work with the mediator to find opportunities for a face-to-face meeting with the other side during a mediation. Whether the communication is focused on a specific issue or contains a broad apology, the connection and understanding that is often generated by the discussion can be powerful and transformative.

Labor & Employment Law CLE - SAVE THE DATE - May 7 and 8, 2015   

Join us for the 48th annual 2015 Pacific Coast Labor and Employment Law Conference which will be held on May 7 and 8, 2015.  


The conference presents nationally-recognized experts in labor and employment law for a two-day CLE in Seattle. I am the Chair of the Planning Committee this year a we have an incredible slate of speakers on the agenda including -- EEOC Chair, Jenny Yang, NLRB General Counsel, Richard Griffin and Paul Grossman.  


For more information, please see the Conference Website or e-mail Kristin Scheyer at