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Mediating the Employment Divorce

Originally published in the Los Angeles Daily Journal, “Fault Lines”, September 9, 2002

Many attorneys and mediators who specialize in employment law are quick to distance themselves from the seemingly less sophisticated field of family law. For those of us who specialize in wrongful termination matters and proudly concentrate upon the growing complexity of disability discrimination or the sometimes subtle nuances of sexual harassment, domestic disputes are considered to be mundane at best and chaotic at worst. Unlike proper civil litigation, domestic relations cases often involve uncontrollably irrational and volatile clients, many of whom are so consumed with feelings of anger and rejection that they frequently are seen as being incapable of making the sound business decisions which a negotiated settlement requires. Many attorneys and mediators alike shun these divorce cases (perhaps understandably), but in doing so incorrectly conclude that there is little or nothing of value to be learned in the area that would be of assistance in resolving employment disputes.

In fact, the two worlds are more parallel than contrasting, and the skill set and temperament needed by the mediator to succeed in each is remarkably similar. Recognizing and acknowledging those similarities can actually provide both a blueprint for understanding the needs and expectations of the parties and an action plan for working through multiple layers of emotion and ultimately obtaining a resolution that is acceptable to both sides.

While a very small number of both kinds of cases do result in marital reconciliation or job reinstatement, nearly all eventually result in permanent separation. Accordingly, the more realistic goal is not to reconcile but to disentangle: a more modest and attainable goal, frankly, than that of fully repairing the relationship. The two parties and their witnesses have no need to agree as to the factual underpinnings of the conflict. They will likely forever remain in their respective camps, designated and discredited as being the exclusive, one-sided witnesses of either the employer or the employee ( much like friends of the groom and friends of the bride), with little interest or motivation in ever compromising their point of view.

Since the employment relationship will not be an ongoing one, it thankfully does not need to be fully repaired. Each side is free to maintain his or her own version of the facts, subject only to certain preordained areas of cooperation (i.e. tax consequences, confidentiality, and perhaps, mutual non-disparagement). By recognizing this larger reality, the focus of the employment dispute can now begin to shift away from vindication and condemnation and move instead towards resolution, finality and certainty.

Indeed, the divorce analogy can be helpful in understanding not only the motivation and emotions of the parties, but also the process which necessarily must unfold before either can completely move from a state of relative war to a state of qualified peace. Hurt feelings, long brewing resentments, and prolonged frustration often drive the underlying perceptions of the parties. While varying greatly depending on the length of the employment marriage, a predictable dynamic is likely to emerge which closely resembles the duality of “I gave you the best years of my life” versus “After all I’ve done for you…how could you accuse me of all these terrible things.”

The Human Resources representative may honestly believe that the employer tried everything possible to salvage the relationship, showed great patience, or was sincerely motivated. The vanquished employee, on the other hand, faced with the shock of being without a viable means of support and experiencing a dwindling sense of self-esteem, may only see the unfairness of it all, particularly if there seems to be a preferential aspect to the employer’s decision. Neither is likely to alter those perceptions significantly during litigation or during mediation, but fortunately (for some) neither really needs to in order for the case to be settled to each party’s personal satisfaction. The key is to allow sufficient time for each side to share his or her reality with the mediator and ultimately feel heard and understood. Indeed, there is little or no chance that either side can begin to evaluate the other side’s point of view until this occurs.

This is not to say that the emotional content of the case is to be thoroughly sanitized and not taken strongly into account in determining proper settlement value. The extent to which a jury might identify with either an employee’s anger or an employer’s belief that they are being extorted has everything to do with each sides assessment of the case. But rage alone won’t get you where you want to go within the mediation itself. Ultimately the proper valuation of a particular case will turn less on a determination of whose subjective reality was correct or whose personal pain or disappointment was greater, than it will upon a more neutral analysis of which side’s evidence and testimony a jury is more likely to accept given their own predispositions and prior life experiences.

During the early stages of an employment mediation, no attempt should be made to minimize the strong emotions felt by the parties. Both are looking for sympathy and should receive it where possible. For the employee, a “notice of termination” can be a truly crushing blow, unconsciously bringing up every past rejection, every failed relationship, and every lost opportunity that has preceded it. Well beyond a mere bruised ego, job termination represents a life crisis of huge import which cannot and should not be treated lightly. The former employee may not yet be ready to acknowledge any performance deficiency on his or her part. In most cases, a well structured mediation, utilizing the technique of separate caucuses, can approach these issues gradually and with great sensitivity until they are ripe for further exploration.

Similarly, for the employer, being served with the plaintiff’s lawsuit can be a major event as well. For some, this accusatory pleading may be one of many and seen as a mere cost of doing business in California. For others it may fly in the face of their perceived prolonged and sincere efforts to keep an individual on payroll despite a host of serious performance deficiencies. Only later in the day will the employer come to realize, that despite all of its’ good intentions, a jury might still see the employment dispute as an outgrowth of its outdated policies, unchecked mid-level supervisors or short-sighted training and reporting practices.

Only in this gradual way can the negotiations move from blame and anger to the recognition of a new reality, prompted by the unpredictability of what a jury might do and based on the need of both sides for psychological closure and financial certainty. The employee is arguably best served by focusing on the future instead of any past injustice that he or she cannot fully change. The employer unquestionably has much to gain by stemming the flow of legal fees and reducing the day-to-day distractions inevitably caused by the constant need for other employees to participate in discovery and interface with counsel.

Generally, the employer is well served by eliminating the risk of punitive damages and the possibility of an award of substantial attorney fees. The employer is seeking to reestablish equilibrium in the work place and get back to the business of manufacturing or selling a product, providing a service, or simply worrying about the competition. The company understandably longs to be free of the barrage of accusations that have put it on the defensive for too long; only if the matter is resolved, can the employer realistically begin to focus in a non-adversarial way upon what actually went wrong in the hiring, training, or counseling process and how best to avoid such incidents in the future.

Meanwhile the employee, while admittedly settling for less monetarily than a trial might have produced, will also have avoided the utter devastation and humiliation of a possible defense verdict. Having circumvented the seemingly endless cycle of discovery, trials and appeals, he or she will now be free to move on with their lives. They will no longer need to see themselves as unfairly cast in the role of “victim” and can freely contemplate what to do with their remaining useful years of employment. For some there will be little change in their view of themselves or the world around them, while for others a period of significant personal growth and emerging career satisfaction may be only a short distance away.

In the end, each side will inevitably go their own way, free to maintain their own subjective realities about each other, but also free to catch a glimpse of, and secretly learn from, the other side’s point of view. Perhaps the employer will forever be viewed by the plaintiff as unfair, insensitive, biased or even corrupt. The employee’s complaint may always be seen by the former employer as nothing more than opportunistic greed and unbridled ingratitude. The employment divorce itself requires nothing more. For the employer this may simply have been an unfortunate hire, a cost of doing business, or a simple breakdown in communication. Likewise, for the employee, this may always be viewed as little more or less than a really terrible job, working at a truly horrible place, for an absolutely intolerable boss. And they are free to leave it as such if they wish, gaining no other insight from the failed relationship.

Yet, as in life, if each chooses at some later time to take some small share of responsibility for the escalation of the conflict and the total disintegration of the employment relationship, it may, at least, help them to avoid similar problems in the future. A trial is unlikely to produce this result for either side, let alone both. It will only serve to perpetuate the myth that only one side can be right and that the other was necessarily wrong. For the victor, such thinking carries a false sense of vindication; for the losing party, it only adds to the pre-existing feeling of prolonged abuse. The mediated employment dispute, like the mediated divorce, carries with it the best possible result for both sides. No one wins or loses and both sides walk away hopefully with their dignity, self-respect and financial future in relative tact. Sometimes less is more when it means that both sides can avert disaster and regain control of their lives.


Gene Moscovitch

Gene Moscovitch After twelve years of full time dispute resolution work, and having now successfully settled well over 1,250 matters, Eugene C. Moscovitch, Esq. has brought a wealth of practical knowledge, insight and experience to PMA Dispute Resolution, making him one of the most sought after mediators in Southern California.… MORE >

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