What You Need to Know About Mediation

Litigation
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mediationIn this chapter, we’ll review the two options you have for mediating your dispute with your employer. For claims under Title VII, you can elect to have the EEOC mediate your dispute. Alternatively, you can hire a private mediator to hear your case.

EEOC Mediation

Mediation before the EEOC will begin with the mediator setting forth the rules of the mediation—for example, confidentiality and the like—and talking about the mediation process. Next, each side (usually you and your attorney—if you have one—and one representative from your company and the company’s attorney) gets to give a short statement about how it views the case. This statement is not a conversation; it’s just a presentation. Most of these statements are brief. The other side is not permitted to ask questions of you or your attorney during this presentation; likewise, you cannot ask them questions.

 

After the statements are complete, the mediator will separate each side into differentrooms. The mediator will then begin a process of shuttle diplomacy. That is, he or she will start in one room and say, “I’ve heard your opening statement. What do you really want to get this resolved?” If the mediator starts with you, you might say, “I’m willing to dismiss my charge if I get my job back and thirty thousand dollars (or whatever) in lost

wages.” Ideally, you will have had a chance to talk with your attorney beforehand to develop a strategy that includes your bottom line for getting this resolved. It doesn’t take a law degree to know that you don’t start out with your bottom line. So, if you offer to settle for $30,000 and reinstatement, you should be prepared to take $15,000 with no reinstatement.

What happens next will depend on the mediator. A good mediator will likely give you some feedback on your case. For instance, “Ms. Employee, I’ve looked at your position statement and I’ve seen a bunch of these cases. I think if you want to get this done, you should be prepared to come down some on that request for lost wages. I’m not telling you to give me a number now; just think about it.” The mediator will then leave the room and go talk to the employer, relaying your offer. A lazy or poor mediator will not attempt to give you guidance on your case or will give you illconsidered advice. Unfortunately, my experience with many EEOC mediators is that they will not be overly familiar with your case and will not move parties to a settlement. But on occasion, cases do get resolved.

After the mediator relays your offer seeking reinstatement and back wages, the employer might respond, “Look, we’d prefer not to spend our time fending off a lawsuit, but we didn’t do anything wrong and feel like we can prove it in court. We won’t offer her the job back, but we’d be willing to characterize the termination as a voluntary resignation and offer five thousand dollars in severance.” Mediator: “Okay, I’ll take this back to them.

But I have looked at some of their documents and, at least as far as I can see, their claim is not baseless. So, is this your last offer?” Employer attorney: “No, it’s not our final offer. We can come up, but not exponentially.” And the backandforth continues until the parties settle the matter or reach an impasse.

In my scenario, the mediator is pretty good, and by that I mean he is leaning on both sides to push them to an agreement. Many are not so good: they might push each side a bit, but will stop when they receive some real resistance. A good mediator will push through that, really spending time with both parties in an effort to help them see the case clearly. He or she also will display some creativity in helping everyone reach an agreement. For instance, the fired employee might be willing to come down on the settlement number if the employer is willing to write a glowing recommendation that she can use to find other employment. Neither side would have considered that option without the mediator spending a lot of time exploring the strengths of the claim with each side: explaining to the employee the risk of losing and explaining to the employer the risk that the employee might win.

At this point, let me take a detour and discuss the emotional aspect of mediation. As an employee, you will do better if you understand that this is a process and one that will not necessarily satisfy a thirst for justice. It is commonly said that a mediation is successful if an agreement is reached and both sides walk away a bit unhappy. As an employee, you will have to be prepared for this process to open old wounds. If you have come this far, you have invested a lot emotionally and financially in your case. And now you have to sit at a table across from your employer who wronged you and its lawyer, both of whom likely think you are just looking for a handout. After you or your attorney lays out the strengths of your case, you have to sit there and listen to the other side’s smug attorney hold forth on why she believes your claim is weak and will lose in court. In preparing yourself, know that this is part of the game. I know, this is not a game for you. But this process is in many ways like a highstakes poker game. If you are prepared for that emotionally going in, the process will be less distasteful.

You also need to be prepared for the process to take a while. A productive mediation cansometimes go on for hours, with the mediator going back and forth multiple times trying to work out a deal. So, bring with you any supplies you might need. A good book, a crossword puzzle, your favorite cigarettes, whatever. While the mediator is talking to the other side, you’ll be sitting in a room waiting and waiting and waiting. Yes, you and your attorney will discuss the mediation for some of that time, but not the whole time. Also, be prepared for the highs and lows. I was once in a mediation that literally went all day and into the night. It actually exhausted the mediator, who essentially just decamped to his office and let the attorneys hash everything out. Around ten o’clock in the evening, we had something close to a final agreement, but at the last minute, the employer changed its position on whether the employee should be bound by a confidentiality clause. It initially agreed to a much lower settlement value in exchange for allowing the employee to talk freely about the lawsuit. But just before everyone signed, it decided it wanted a confidentiality provision. This essentially ended the mediation with no agreementreached. This means it was almost like it never happened. Ten hours spent going throughall the highs and lows (and boredom) of mediation, all for nothing. This can be especially demoralizing if you are paying your attorney an hourly rate. Not only did you not settle, but you now also have a $3,000 bill. This example is on the extreme side, but it is not uncommon. What to do?

Sit down with your attorney before mediation and come up with a realistic appraisal of your case and what you might accept in settlement. The most pressing issue is the money.

What are you willing to accept to get this all over with? Really consider it. I understand that it is distasteful to put a price tag, one likely much lower than you want, on what may have been one of the most painful experiences of your life. But remember that mediation is about the art of the possible and will always—if it is to be successful—involve taking less than you want. Also, really think about the money. Of course, you want the most you can get. You’d rather get $100,000 than $30,000. But think about that $30,000 figure.

(Let’s assume for the sake of this exercise that this amount is after taxes.) I know few people for whom this is not a lot of money. It can pay off a car, a year of college, credit card debt—you get the point. I want you to think about what it would feel like to have a check like that. I want you to do it now because I have been in more mediations that I can count where my client went in wanting six figures or more, only to realize after hours of mediation that a lesser, more realistic amount was acceptable.

Now, some of this reassessment occurred because the mediation process worked. The client went in with a high figure, but once she heard the mediator talk about the weaknesses in her case (they all have weaknesses) and felt the unpleasant experience of having to face her dirtbag boss and his lawyer, she decided to take a lower amount to end the claim. That’s fine. Like I said, that’s how the process is supposed to work. But save yourself some of the highs and lows. Heck, just save yourself an hour or two of haggling.

Be prepared for the emotional stress and have a realistic assessment of what you are willing to take in settlement.

I don’t say this to push you to settle. Sometimes it is worth it to stick to your guns. There is certainly a lot of dignity to be gained by winning a lawsuit, regardless of the financial outcome. Also, know that settlement values change. Your employer may lowball you in an EEOC mediation, only to change its tune completely after being kicked around in a few depositions. The closer you get to trial, the higher that number goes up. Of course, you need to be prepared for the converse: that your case value might go down. Maybe you think you’ve got a great case until one of your key witnesses suddenly changes his story during depositions, virtually gutting your legal case. All of a sudden, you realize you just left the best money you were going to see in this case on the table at the last mediation.

Both sides face risks by going forward. You need to make a coolheaded evaluation of what kind of risk tolerance you have. Also, have a frank discussion with your attorney. Many retainer agreements have language that will allow an attorney to withdraw representation if you turn down what the attorney believes is a reasonable settlement offer. So, if the employer offers you $100,000 in mediation and your attorney says he’s litigated a dozen cases just like this and the offer is the best you will see, you have the right to turn it down, but your attorney may withdraw, leaving you without representation and perhaps with a substantial bill for legal fees and costs. It’s better to be clear on this before you walk into mediation rather than after a long day of mediation when everyone is tired and wants to go home.

Keep in mind that failure at mediation does not mean that all is for naught. It is not uncommon for parties to settle days after the mediation once everyone has had a good night’s sleep and taken some time to reflect.

Private Mediation

You can also pursue your claim by hiring a private mediator. Private mediators are professional mediators. Private mediation firms can help you select a mediator with experience in your case. The costs vary, but generally range anywhere from $250 to $500 per hour. Each side will usually pay half of the cost.

Why a private mediator? Time and experience. Mediators with the EEOC usually work a ninetofive gig. They may not be the sharpest tools in the drawer (though I’ve worked with some very good ones). These mediators may not have even read your file before the mediation, and they may never have worked as an attorney litigating a case like yours.

All things being equal, they probably would like to settle your case, but if it means staying past five o’clock, forget it.

In contrast, a private mediator will generally be a retired judge or an experienced attorney who will spend a considerable amount of time preparing for the mediation before it begins. He or she will review all the relevant court documents, in addition to whatever else you want to share with him or her in confidence. During the mediation, the private mediator is almost guaranteed to be active, educating and pushing each side to settlement.

These mediators will go the distance to get a settlement done. Need to press on into the night to get a deal inked? A private mediator will more than likely sign on for that.

Moreover, a private mediator will often stay involved even if facetoface mediation fails.

Good ones will stay in touch with each side, searching for creative solutions to find common ground for settlement.

Who would you be more willing to listen to, a tired EEOC mediator in a wrinkled suit or a retired judge who has seen a dozen or more cases like yours tried in his courtroom? Not even close, right?