(This article is Part 2 of a series by David Rocklin on the mediation process.)
They say communication is the key to any relationship. If you can’t listen to what the other person is saying – explicitly and implicitly – the relationship’s in trouble.
The same holds true in virtually any communication an attorney has with her or his client about key events in the litigation process, and mediation is certainly one of those key moments in the life of any case. As a mediator, I well know how complex the decision to mediate is. We’re often faced with the scenario in which certain individuals in the decision tree – the attorneys, the employees, those managerial personnel directly involved in the decisions/actions underlying the case – come out in favor of mediation, while others aren’t so sure. What ensues is a discussion of the pros and cons, the merits of mediation vs. continued litigation with its attendant risks and costs.
It’s fair to say that most attorneys know these issues well and raise them thoroughly when speaking to their clients, but let’s list a few in any case:
(1) Certainty and closure
Imagine this scenario: you and I meet for coffee and some shop talk. A few weeks later, you receive a summons and complaint from me. In it, I allege that during our call, you promised me a job with your firm. In reliance on that representation, I’ve quit my present gig and demand the job, as well as damages and other relief. It’s a total lie, and you tell me so. My response: you’re right, it is. But by the time you’re able to present that fact to the presiding judge, or dismiss me on motion, you’ll have spent a few thousand dollars at the very least. Pay me half that and we’ll call it a day.
We can just as easily flip this scenario. You did make me that promise, and in reliance on it, I quit my job, moved my family and showed up ready for a position that doesn’t exist. When I try to discuss it with you, I’m told “go ahead and sue. It’ll cost you far more to bring a case than you’ll ever get.”
Obnoxious? You bet. But also true? Yep. While extreme and admittedly outrageous, this is in fact the litigation process in a nutshell, and it’s one of the most difficult to get across to principals in the decision-making process. Litigation drags on, sometimes for years, at great economic and emotional cost, not to mention the havoc it can wreak on personal lives, plaintiff and employee morale, managerial cohesiveness, business plan disruption. All for the promise of a jury trial that is far from predictable no matter the facts, and the potentiality of appeal thereafter. All in the name of an outcome that may have very little to do with what’s “right.”
Mediation offers the straightest line to the end of the case.
You know that scenario above, in which I greedily asked for a few thousand dollars to go away? Multiply that several times over and you have a far more accurate picture of what it costs to take a case to the eve of trial. In the Los Angeles area, the average (granting that there may be no such thing) single plaintiff employment case without a lot of bells and whistles, few if any experts, modest motion practice, will cost at least $100,000, if not more. And that’s to get the case to the courthouse steps; never mind the trial itself. Moreover, behind each of those dollars spent are hundreds of hours of human time lost to document discovery and highly intrusive, disruptive depositions.
(3) ‘The Decider’
Be it a jury or bench trial, someone who doesn’t know your client will decide their case. This goes well beyond the inherent unpredictability of trials, the widely swinging damage ranges juries can toss out like Monopoly money, or the hidden (from the jury) peril of shifting attorneys’ fees to defendant employers in the case of plaintiff verdicts. These triers of fact will never, on their best day, be able to conjure the workplace in all its nuanced, detailed and subtle shadings. They won’t be made to understand the dynamics of interpersonal relations between the case principals, or the workforce generally, no matter the skills of counsel on both sides. Try explaining a relationship in your life of some duration to a perfect stranger…in about 10 minutes. It’s hard. And yet these are the folks entrusted with the outcome of the case. That’s a daunting proposition when we’re speaking of a result that each side must live with as determinative.
Mediation allows each side to keep far more control over the outcome. They decide for themselves what they can and cannot accept by way of resolution. Not a bad way to go.
As you can see, there are a number of issues to consider in the name of ending a potentially expensive, explosive and disruptive dispute. These are some of the big ones, but let me suggest a few more that the savvy attorney will be aware of when assisting clients with the decision to mediate:
You’re asking your client to pay the person they’re mad at (for the defendants). This is no small thing, and a thorough attorney will know to flush this issue out early. Acknowledge the emotional component of the case. Oftentimes we consider the plaintiff to be the aggrieved one, having been discriminated against, terminated, etc. But on the other side of that vs., there are parties who have been labeled racist, misogynist, homophobic, dishonest in their dealings, and so on. Emotions run high on all sides, and it’s in that context that discussions concerning why and how much money should be paid to plaintiff should be held.
Relatedly, you’re asking your client to walk away from what they know and what they don’t know (plaintiff, but could apply to defendants too). Mediations take place at a fixed moment in time. At that point – whether early or late in the life of the case – the parties know what they know. Their valuations of potential damages flow from the knowledge they’ve accumulated and assessed to that moment. Expectations of potential payment can, as we well know, become informed by emotion and fueled beyond reason by other parties, other cases, and above all by suspicion that the other side is hiding their true motives. For plaintiffs, it can be hard to accept less than perhaps they feel they deserve, and harder still to let go of the possibility that one more deposition, one more document or email exchanged, will break the case open further. Mediations by nature put a price on closure, and mediators value that price by what the parties can demonstrate at time of meeting. What’s unknown – whether dire or exculpatory for either side – stays unknown.
Finally, as a mediator I strive to keep this one firmly in mind: I’m hanging a price tag around the decision maker’s neck. Whether they’re present at mediation or not, there resides in every employment dispute an individual who made the call to terminate, to deny further leave, to exchange pleasantries that became too risqué, to discipline or demote. They may not be named as a party, but they’ll have to answer for the decision even if supported by upper management. This is particularly true when considering settlement. That settlement will come to represent the price of the decision, and the higher the price tag, the higher the resistance. Conversely, the lower the price tag, the lower a plaintiff will feel they were worth; their absence from the workplace will be measured in dollars, or cents.
Awareness of this very human dynamic will not only help the mediator in conveying relative risks and rewards of settlement, but it will greatly assist the attorneys on both sides in helping all parties involved see their way to a day after the fight is no longer a part of their lives.
In the next blog article, we’ll take a closer look at some of the optimum preparation techniques attorneys can bring to bear, to ensure that their clients are ready to make the most of their mediation session.