Journal articles 1, law review articles 2 and court decisions 3 dwell on the question of whether mandatory employment arbitration clauses are enforceable. This discussion is important, but to some extent it misses the point. Of all the alternate dispute resolution alternatives, arbitration is most like the courtroom and carries with it the human and transactional costs that are often seen as the negative aspects of litigation. 4 Some cases require publicity and certainly some court cases are necessary for the development of employment law. In fact, the privatization of justice has been criticized as diverting public issues into private settings. 5 Nevertheless, from a preventative law perspective, the focus needs to be redirected to facilitating the development of in-house conflict management systems that maintain the right to resort to arbitration or the courtroom, if required, but which facilitate the development of dispute resolution as early and as close to the source of conflict as possible. 6 The development of such programs can create transformative dimensions, namely empowerment and recognition opportunities. 7 Such programs reduce the costs associated with litigation and its brother- arbitration. In-house dispute resolution systems and litigated case meditation both provide parties with an excellent opportunity for creative control of their own employment dispute. 8
Apparently, mediation is emerging as the favored form of ADR for employment discrimination disputes. 9 It offers advantages that are important to the participants. A safer atmosphere, greater confidentiality, enhanced privacy, decreased emotional trauma, reduced transactional costs, greater flexibility in the timing, scope and procedural format, increased creativity in the remedies, increased opportunities for empowerment and recognition and increased focus on interests rather than legal positions are all advantages offered by employment mediation. 10 Given the increasing use of employment mediation and its accepted advantages, this article has been prepared to guide attorneys in the mediation of their employment cases.
The Nature of Employment Cases
Employment cases involve not only workplace disputes but also the very personal core issues of validation and self-esteem. 11 Being gainfully employed is more than a means of earning a living: “it is dignity!” 12 Hence, the employee who has suffered discrimination, harassment or retaliation may well feel angry, betrayed, hurt, and devalued. 13 With the exception of the bullies as described in cases like Oncale 14 few accused desire the label of a harasser. The wrongly accused may feel stigmatized, angry and humiliated. Even the justly accused may feel betrayed and fearful of losing their job and or their reputation. Large multinational corporations such as Coca Cola, Texaco and Mitsubishi do not relish the tarnish to their reputation; much less the huge costs involved in paying claims involving systemic workplace discrimination or harassment Whether we are speaking of the corporate or individual offender or the group or individual victim the issues in employment cases are, needless to say, intense. Careers on both sides of an employment case may be at risk and involved individuals can expect their lives to be examined under a microscope. This is particularly true for the complainant. While we are constantly reminded that “people who live in glass houses shouldn’t throw stones”, that adage has never stopped defense counsel from their voyage of discovery and attempted conquest. Individuals who have built their self-identity at the workplace are especially vulnerable to the overwhelming impact of rejection and the often-sudden loss of workplace relationships built over years. The psychological dynamics of depression and related issues may be at work in many of these cases. Attorneys, adjusters, corporate decision-makers, alleged perpetrators and alleged victims must all be sensitive to these volatile and intensely emotional issues as they arise before and during mediation.
Experienced advocates bring neutrals up to speed on the latest employment cases. They supply the mediator with the motions and briefs in support of, or in opposition to, motions for summary judgment and class actions. Thoughtful and persuasive confidential settlement statements are submitted.
It is imperative that mediators handling employment cases be perceptive and understand the unique business issues and the rather complex psychodynamics involved in these cases. Mediators need a good understanding for the workplace reality. The mediator must ponder such questions as “What really happens in the workplace? Is there a conspiracy of silence? Are the work evaluations realistic? What power imbalances are at work here?”
The mediator must come to the mediation prepared to work hard, to probe, and to be the “reality check”. A good sense for people, good intuition and insight into workplace power imbalances are important ingredients for effective employment mediation. The mediator must come to the mediation prepared to be empathetic, flexible and creative. Story telling and the ability to use humor are skills needed to build the rapport and the trust required for successful employment mediation. 15
Mediators may bring different approaches to employment mediation. Some may utilize “therapeutic mediation”. 16 In “therapeutic mediation” the mediator considers the emotional dimensions of the dispute and incorporates consideration of these uniquely personal issues. 17 This approach may have greater utilization with in-house programs or pre-litigation mediation than during traditional mediation. Another approach gaining popularity primarily with in-house employment dispute resolution programs, is “transformative mediation” as promoted by R. Baruch Bush and Joseph Folger. 18 They suggest that we should view disputes as opportunities for growth and ‘transformation’. The “transformation” occurs, in part, through the “empowerment” of strengthening a participant’s capacity to analyze conflict situations. 19 Moreover, transformation occurs because of the “recognition” that takes place with the enhanced capacity to see and to consider the perspective of others. 20 Other mediators use an interest-based or problem-solving approach. In such an approach, the mediator helps the parties in conflict to identify and focus on their needs and interests and search for mutually satisfactory agreements. 21 Still other mediators facilitate distributive or zero-sum negotiation, which relies upon rights- based analysis. 22 In such negotiations the advocates typically seek to maximize the financial advantage for their client. 23
With the emergence of employment practices liability insurance, adjusters are increasingly present at the mediation of litigated cases. Involvement of a participant whose interest is primarily financial changes the interpersonal dynamics of employment mediation and makes distributive negotiation more likely. 24
In sum, the participant’s choice of mediator and their mutual design of the mediation process may be critical to the success of the mediation. 25 A good employment mediator must have the capacity to be empathetic, build rapport, establish trust, be a reality check and recognize the dynamics of power differentials. A mediator engaged in employment mediation must be capable of combining aspects of all mediation approaches and capable of knowing when to utilize a particular approach.
The timing of employment mediation is a critical element to its success. Litigated employment cases should not be mediated too early nor should they be set too late. Each party needs sufficient information to make an informed decision but parties must be aware that too much discovery “bloodshed” may cause positions to become frozen and settlement opportunities lost. Each party needs enough information to adequately appreciate their risks and to fully evaluate their case. This may be after an internal investigation, after the issuance of a right-to-sue letter, after the deposition of the complaint and the accused, neutral fact finding, or at some other point when sufficient information is available to both parties. Given the attorney’s fee component in employment cases, it is possible to do so much discovery that settlement becomes prohibitive. Similarly, if the case has been filed and if the case has gained a lot of pre-trial publicity, the chances for pre-trial resolution may be lost, as this intangible cost has already been incurred.
STRATEGIES FOR MORE EFFECTIVE EMPLOYMENT MEDIATION
A step often overlooked in employment mediation is the customization of the mediation design. Advocates and mediators alike, all too frequently, fall into the rut of “cookie cutter” – one size fits all – mediation. It is essential that the mediator be creative and articulate in determining- with the parties- the design of the mediation most likely to produce a satisfactory result. Factors to be kept in mind when designing an employment case for mediation are: (a) the nature of the accusations, (b) the personalities of the accuser(s), the accused and the institutional decision makers, (c) the conflict resolutions styles of the participants, (d) the workplace dynamics and (e) the public interest issues. Design options include a pre-mediation conference between counsel and the mediator, pre-mediation caucuses, staggered starts, co-mediation, a pre-mediation discovery plan, an agreement as to mediation attendees, etc. The advocates and the mediator might discuss their expectations for the mediation. Are the participants anticipating a distributive negotiation, an interest – based or problem solving mediation process, or are they looking for transformative opportunities? Do the participants want the mediator to be evaluative, facilitative or is some hybrid mix preferred? Frequently, a mix of these mediation styles and techniques is required for effective mediation.
It is highly recommended that the parties go outside the typical mediation box and work with the mediator in advance of the mediation. Too often advocates and mediators alike bring a rights-based analysis to the mediation and forget to adequately consider the significant emotional and environmental issues at play. A pressure free, pre-mediation caucus with the effective utilization of active listening helps the mediator and the participants to develop insight, understanding, rapport, trust and respect in advance of the mediation. This will greatly assist in enabling closure at the mediation. When going outside the design box, parties should consider the number of accusers, the number accused and the nature of the accusations to determine whether, for example, if a diverse co-mediation team would be an effective approach.
Addressing the Elephant Inside the Tent
As mentioned above, employment mediation deals with profound emotional issues. It is important to keep in mind that any rights-based analysis that neglects to address the importance of the underlying issues and interests is often doomed to failure. Participants in employment mediation are not expected to be psychotherapists but they should be expected to be empathetically cognizant of the important psychological issues that may arise and approach the mediation mindful of their potential impact on the mediation. If emotional or psychological factors do interfere in the mediation, referral to or consultation with a therapist may be appropriate.
Both sides in employment litigation must assess their case and develop a theme that reflects their view of the facts and the law. Themes organize a case and are persuasive. Themes should be utilized in mediation, just as they would be at trial. One added advantage for utilizing a theme at mediation is that participants often get a pre-trial reality check. Does the “theme” have resonance with the mediator? As the participants try the “theme” out on the mediator, they must consider how it “resonates” with the other side and how sincere it sounds to the opponent. If an advocate does not have a theme to advance at the mediation, that generally means the case has not been effectively pulled together. This failure in preparation undermines the advocate’s credibility and the persuasiveness of his/her presentation, thereby making closure at mediation more difficult.
Preparation of the Advocate
No self-respecting advocate would go to trial without meeting with witnesses and reviewing their prospective testimony. Similarly, no rational advocate would go to trial without exhibits. Given the modern state and federal rules of civil procedure few advocates are able to go to trial without giving their opponent full notice of their experts, lay witness, economic loss projections, and exhibits. Nevertheless, participants in mediation often miss the opportunity to make a good first impression at the mediation for fear of giving away too much information. In reality, plaintiff ‘s advocates must show their opponent why they should give the plaintiff money, a workplace accommodation, etc. The pre-mediation preparation and the mediation conduct of plaintiff ‘s counsel must reflect insight, determination, competence and readiness to go to trial. Plaintiff ‘s counsel might consider (1) giving his opponent a version of his/her “confidential settlement statement”, (2) bringing a key lay witness to the mediation, (3) making an expert available by phone and/or (4) using vivid statistical visuals. On the other hand, if defense counsel wants the plaintiff to settle early, to dismiss the case, or to settle modestly, he should take key depositions, provide supportive statistical data and file his Motion to Dismiss before the mediation. Defense counsel must show Plaintiff ‘s counsel and the plaintiff that he/she will be ready for trial and that the trial will not be a “walk in the park”. On the other hand, defense counsel and his/her client might propose creative settlement options still available for consideration during a mediation that might not be realistically available at trial.
Preparation of the Client
The reality is that advocates must prepare their clients for mediation. Just as an attorney would prepare his client for trial, pre-trial rituals like “role-playing” and “woodsheding” should be utilized before a mediation. A risk-benefit analysis should be conducted before the mediation. Weaknesses as well as strengths should be considered. Counsel and client should carefully consider the client’s interests and how those interests might be addressed in mediation. Counsel and client must, at least, tentatively establish a realistic monetary and non-monetary settlement target. This is often a difficult task for advocates. More often than not advocates are hired to be “gladiators”; however, clients need to be coached that they require a “gladiator/dove” styled advocate at the mediation if the participants are to accomplish conflict closure. In other words, advocates at employment mediation need to be empathetically assertive. 26 They need to avoid the trap of seeking client approval. 27 Counsel need to seek out their client’s underlying as well as overt interests. Then, after thorough preparation of the client, the confident attorneys will be better able to “counsel” their clients toward a satisfying closure of their case.
Preparation of the Other Side
If the objective of a particular mediation is to come to closure, the advocate must take steps to get the other side ready for resolution. First, this requires engaging in sufficient discovery (formal and/or informal) to allow the opponent to see the weaknesses in his/her case. Depositions can provide necessary information and can be used to impress the opponent of the advocate’s skill while highlighting weaknesses in the opponent’s case. Disclosure of expert reports from credible and respected experts assists with balanced case evaluations.
Both sides should avoid the temptation of playing “lets-hide-the-ball”. If both parties play “lets-hide-the-ball” then each will be evaluating different cases. If parties are evaluating different cases common sense tells us that dispute resolution will be more difficult, that the opportunity for transformative mediation will be lost, and that interest-based (problem solving) mediation will be frustrated.
It is often essential that counsel allow the participants to have their day in court. Many feel that this means allowing one party or the other (or both) to express their view of the facts and to give direct or indirect expression of their feelings. Do not lose sight of the fact that counsel often become emotionally invested in their case and that they, too, have to give expression to their advocacy before they are ready for closure. The astute advocate allows this venting to occur but not to polarize. 28 The astute advocate uses venting to reach out to the other side and to create an opportunity for reciprocal listening. He or she creates the opportunity for empowerment and reciprocal recognition of perspective. Reciprocal listening skills provide the opportunity to address the underlying interests of both parties and to discover any transformative opportunities. Purposeful venting can create increased opportunity for conflict resolution. Along with venting advocates most consider the appropriateness and the value of either acknowledgment or apology. An acknowledgment is often appropriate and helpful when liability is contested, but some level of harm accepted. An apology may be necessary when liability is conceded and but the level of harm disputed.
Advocacy at Mediation
An advocate gains credibility at trial by acknowledging and “pulling-the-punch” on perceived weaknesses. The same is true in the context of a mediation. Furthermore, treating the other participants with dignity rather than with disdain often goes a long way toward establishing the bridge necessary for resolution. The effective mediation advocate avoids displays of arrogance and unnecessary antagonism. Too often lawyers think that being an effective advocate means that they need to annihilate and demean their opponent. While this acrimonious view of advocacy may be effective, it more often than not results in unnecessarily prolonging litigation. Similarly, counsel may feel that the tough-guy annihilator is what their clients expect of them. This perspective needs to be investigated and reconsidered before the mediation. Coming on strong may be effective, but typically empathetic assertiveness is more effective. Knowing your case and understanding people can create the momentum that can bring the parties to positive closure. It is important to note that when counsel are impatient and rush to a “take-it-or-leave-it” settlement position, they prevent the other side from getting to a realistic place for closure and may misjudge their own endpoint. Patience, listening, reflection, flexibility and informed/velvet-gloved firmness are all important advocacy skills necessary to be a successful advocate in employment mediation.
Tearing Down The Barriers to Dispute Resolution
If the advocate’s goal in mediation is closure then he/she must be aware of, guard against and tear down the barriers that frustrate dispute resolution. These barriers include: attorney client enmeshment, irrational emotionalism, partisan perception or bias, judgmental over-confidence, reactive devaluation of the opponent’s proposals and the hired gun mindset. 29 Partisan perception may be the most insidious of these barriers to dispute resolution. Advocates and clients alike are “disposed to ‘perceive’ what they expect to and wish to “see”, as to what it is in their self-interest they “want” to see.” 30 Unquestionably, effective mediation requires objective analysis, perceptive listening, utilization of people skills and principled negotiation.
Employment mediation may uncover the opportunity for creative solutions. Options for consideration in employment cases may include reasonable accommodation, the reassignment of the accused, the sanctioning of the accused, the reassignment of the complainant and the training and retraining of the accused (and others) within the workplace. Training may involve human diversity and multicultural awareness issues. Counseling of the accused or the accuser in anger management, conflict resolution and communication skills may be appropriate. Out-placement services, severance packages and letters of reference are examples of options that may be necessary in the employment case. Finally, acknowledgement for the complainant is not to be ignored. The goal is to look for underlying interests and to consider the possibilities for personal and workplace transformation.
Key Settlement Clauses
When the parties are a hair’s breadth from closure it is ludicrous for the settlement to breakdown on confidentiality clauses, tax treatment issues, etc. Such issues should be dealt with during the course of mediation. It is highly recommended that if counsel has key settlement clauses they should be brought to the mediation. These clauses should be discussed during the mediation and then naturally incorporated into the Memorandum of Understanding prepared as the mediation concludes.
There are dealmakers and there are deal breakers. What conflict resolution style (accommodative, avoidant, cooperative, competitive and collaborative) does the advocate and the client bring to the mediation? What style will work best to bring the mediation to a successful closure? Do the participants need to step outside themselves and their conflict handling modes in order to close the case? The sophisticated advocate will be in touch with his/her feelings and his/her clients’ interests and adopt the style and strategy necessary to “close-the-deal”.
Two and a half centuries ago, Sun Tzu, a Chinese philosopher and warlord, wrote a book entitled, “The Art of War”. 31 He has left some observations that thoughtful advocates in employment mediation should carefully consider. “Ponder and deliberate before you make a move” 32 and remember that “the true objective of war is peace” 33
Mediation can empower the parties and create the potential for a transformative experience. It may give the parties an opportunity for self and mutual recognition and acknowledgement. Underlying interests as well as overt interests must be recognized and creatively addressed. In employment mediation counsel must be uniquely prepared to cooperate and to contest at the same time. 34 In order to be properly postured to both effectively contest and to effectively cooperate during mediation, the astute employment advocate must have given his/her opponent a reason to cooperate before the mediation. Preparation beforehand, patience, and thoughtfulness during the mediation are important ingredients in successful mediation advocacy. In employment cases it is particularly important to consider the emotional content of the case, give your opponent “face” and remember that your goal is to make “peace”.
1 William C. Heekin, More individual employment disputes can and should be arbitrated, Jr. of Alt. Disp. Resolution in Employment. 31 (Fall 1999); Nancy Welsh, Arbitration and beyond: Avoiding pitfalls in drafting dispute resolution clauses in employment contracts, Jr. of Alt. Disp. Resolution in Employment 35 (Fall 1999).
2 Carrie A. Bond, Shattering the Myth: Mediating Sexual Harassment Disputes in the Workplace, 65 Fordham L. Rev. 2489, 2507 (May 1997) )(hereafter cited as “Bond”).
3 Gilmore v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991); Armendariz vs. Health Psychcare Services, ____ Cal.4th____, ____ Cal. Rptr. 2nd____, P.3d____ (Aug. 2000); Craig v. Brown & Root, Inc. ____ Cal. App 4th ____, ____ Cal. Rptr. 2nd ____ (Oct. 2000).
4 Compare Karl A. Slaiken and Ralph H. Hasson, Controlling the Costs of Conflict, 53-104 (Jossey-Bass 1998) with Cathy A. Costantino and Christina Sickles Merchant, Designing Conflict Management Systems, 43-48 (Jossey-Bass 1996).
5 Sara K. Trenary, Race rethinking neutrality and ADR, Jr. of Alt. Disp. Resolution in Employment, Vol. 54, No. 3, 40-48 (August 1999).
6 Stephen K. Huber, Transformative Mediation in the Workplace, Jr. of Alt. Disp. Resolution in Employment, 37-42 (Winter 1999)(hereafter cited as “Huber”).
7 Id. 8 Jonathan R. Harkavy, Privatizing Workplace Justice: The Advent of Mediation in Resolving Sexual Harassment Disputes, 34 Wake Forst L. Rev. 135, 164 (Spring 1999)(hereafter cited as “Harkavy”).
9 Id at 36. 10 Kenneth A. Sprang, Therapeutic Justice in the Workplace: The Use of Imago Rational Therapy in Employment Disputes, Jr. of Alt. Disp. Resolution in Employment, 53, 54 (Fall 1999)(hereafter cited as “Sprang”) citing Kenneth A. Sprang, Beware the Toothless Tiger: A Critique of the Model Employment Termination Act, 43 American Univ. L. Rev. 849, 852 (1994).
11 Sprang at 54. 12Id. 13Id. 14Oncale v. Sundowner Offshore Services, Inc. 523 U.S. 75 (1998). 15Robert A. Baruch Bush, Joseph Folger, The Promise of Mediation, Jossey Bass (1994) (hereafter cited as “Bush and Folger”).
16Sprang at 55. 17Id. 18Kenneth Fox, Exploring the Convergence of Organizational and Conflict Theory: Can Mediation Support Organizational Learning? Jr. of Alt. Disp. Resolution in Employment, 30, 33 (Winter 1999)(hereafter cited as “Fox”).
29Mnookin at 156-172. 30Mnookin at 157. 31Sun Tzu, The Art of War, (James Clavell ed. Bantam Doubleday Dell Publishing Group 1983). 32Id.at 32. 33Id. at 7. 34See generally, Bernard Mayer, The Dynamics of Conflict Resolution, 61 (Jossey-Bass 2000).
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