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If the most important step in a journey is the first one, you want to be sure you’re planting your foot on solid ground and not in a hole that swallows your entire leg.
We recently assembled a panel of folks for a LexisNexis® webinar who know quite a bit about getting off on the right foot when mediating employment claims, such as allegations of race or gender discrimination and sexual harassment, or wage-and-hour disputes.
The speakers were: Michael Kreitman, senior counsel in Macy’s Law Department; Plaintiff Attorney Miriam F. Clark, Ritz Clark & Ben-Asher; Defense Attorney Todd H. Girshon, partner at Jackson Lewis; and Dina R. Jansenson, senior mediator and arbitrator at JAMS.
Macy’s Kreitman moderated the program and started off by asking: “When is it a good time to mediate a dispute? An unsuccessful mediation can shatter expectations and make it hard to resolve the case,” he said. “And being unprepared can affect the outcome of the case.” So when is the time right?
JAMS Mediator Jansenson said just about any time is good, but try to do it as early in the case as possible, before the parties rack up legal fees, expend a lot of effort or develop resentments that will impede a successful resolution. “But,” she added, “you want to have sufficient information to evaluate the claim in order to give mediation the maximum possibility of success.”
Clark, a plaintiff attorney, also likes to consider mediation early, but not before she knows what the defenses are. Clark prefers to get at least to the stage when the parties have provided their position statements. She also doesn’t want to appear to her client that she just wants to get the case over with by mediating too early. “We want her to think we’re willing to fight for her,” Clark said, “and have time to wrap her mind around the idea that three years of litigation may not be in her best interest.”
Clark added that the timing could depend on whether you are using a private mediation facility or going through an EEOC mediation program or a program offered in district courts.
Defense Attorney Todd Girshon also likes to assess the appropriateness of mediation early in the game. “Raising the topic can be tricky,” he said, “depending on the posture of the case and whom you’re litigating against. Of course, if you’re before an administrative agency or in a court-run mandatory mediation, you may not have to raise it—they’ll do it for you.
“But if litigation has commenced and you’ve had some preliminary settlement conversations,” Girshon said, “you might decide the time is right. Then you have to consider who your adversary is and whether raising the idea of mediation will be perceived as a sign of weakness. You may know your opponent and know how they will view the suggestion, but if you’re dealing with a stranger you will want to be cautious. In that case, you certainly don’t want to raise the idea with too much enthusiasm,” he said.
Kreitman asked, when you’re at the point where there hasn’t been much discovery, how do you raise the possibility of a resolution? “Any magic words to entice your adversary?”
Clark reiterated that she first must know what the defenses are. What does the employer say is the reason her client didn’t get a promotion or overtime pay? Clark wants her client to be prepared. She wants to have any preliminary discussion with the employer before she meets with the client, so there isn’t anything insulting or offensive said to the plaintiff that may cause problems or resentments down the road.
Kreitman said that, from his in-house counsel perspective, the exchange of discovery and an early discussion of settlement are fruitful. He likes to have an open and candid dialogue to prevent surprises later. “This may be hard for litigators who might be in fighting mode, but you have to have your negotiation hat on too.” Kreitman also said he finds value in applying decision-tree analysis in attempting to resolve a matter.
Girshon said early case evaluation is important and requires communication. “Listen directly to the other side, and pay attention to what they may be hinting at. Are they going the distance? Do they want to settle early? Look for queues. This aspect of early case evaluation is key since you want to know what your case is worth.” Girshon wants to decide: “Should we go the distance or settle early? Can I resolve the case on my own via settlement or do I need a third party to assist with the process?”
Clark is a proponent of early information exchange so she can understand the arguments she will be facing and the evidence that exists. “If we’re in litigation we already know, but if it’s early or there has been no EEOC position statement we have no idea. I am evaluating the case at this point. What are the damages? How strong is our case? I must know a fair amount about the defense and evidence.”
Jansenson said the “more information exchange the better.” As a mediator, “When a case comes to me without this I incorporate information exchange into the process, such as employee files or other critical pieces of information in discovery.”
Asked what he, as defense counsel, wants from the plaintiff, Girshon said he wants to be as prepared as possible and wants to value the case going in. He wants to focus on hard damages, lost wages, out-of-pocket damages. Does the plaintiff already have another job with comparable pay and benefits? If they don’t have another job, have they tried to mitigate their damages by securing unemployment compensation? For compensatory damages for emotional distress, is the person being treated by a healthcare provider? Can I get the medical records under a confidentiality agreement? If there is a claim of sexual harassment, was there a consensual relationship? If deep in litigation, the parties have all that already.
Girshon said he particularly wants to know if the other side has a “nuclear option” or “smoking gun.” If there is such damaging evidence, Girshon said it’s going to come out in discovery anyway so he’d like to see it early.
Kreitman asked, “How much negotiating should you do beforehand and how much should you leave to the mediator?”
Jansenson likes the parties to negotiate before they come to her. “But if you get close to your real bottom line, it will be difficult to reach a conclusion. Parties need to see movement in the process,” she said. “It’s a gift to the other side to show flexibility and you can’t do that if you’ve already negotiated down to your bottom line. In other words,” Kreitman added, “Don’t box yourself in.”
“If you think you’re going to mediation hold some back,” the panelists said.
Assuming you’re not using a free option at the EEOC or court, the cost of mediation can be a problem for the plaintiff. “It’s the first piece of negotiation,” Clark said. “If my client is on unemployment insurance, and can’t afford anything close to 50% of the costs, you negotiate,” she said. “Many defendants are reasonable.”
Girshon said he tries to split the mediation costs evenly between the parties. “The goal is to let the plaintiff have some skin in the game so they are committed to the process. We don’t want to go to a lot of trouble preparing and filing people for the mediation only to have the plaintiff think she can walk out of the proceedings. That’s a problem. Even if the plaintiff commits to $500, if that’s meaningful to the plaintiff, we will take that. And we will offer to pay for mediation if the case settles in mediation.”
Kreitman turned next to considerations when selecting a mediator.
Girshon made it clear that one size does not fit all. “First, you need to research the right mediator for the right case. In some mediation programs you might get whoever is assigned, but if you go through JAMS or another company, you want to match the case with the mediator and you want to have the right match for your client. Do you need a forceful mediator or someone with a soft touch? I like to ask the other side ‘who do you like?’ And hope someone is on that list we like for the case. It’s important to show that the other side is invested. I will need a mediator to sell certain concepts, but if the plaintiff thinks they are in front of a defense mediator, that will impede the process. If the other side gives me someone I don’t know, then I research the mediator through my network.”
“Trust is critical. The mediator is the first person my client can tell her story to,” Clark said, “so we must trust the mediator. Things come into play like their manner, age, gender and experience level on the topic.” Clark said she wants to know: “Does this mediator relate with certain clients well? Are they someone my client will trust?”
Kreitman said he likes to work with his adversary to come up with a list of mediators, then he interviews the mediators to see if they have the right personality and special knowledge that will serve the case well. “The right mediator is a big factor in the outcome.”
Jansenson recommended that the parties ask for the mediator’s references and make sure they have references from both sides of the bar.
Kreitman asked the panel for their views on communicating with mediators with all parties present or in one-on-one sessions.
“I am a huge believer in individual calls,” mediator Jansenson said. “If you are in mediation you should ask for them if the mediator hasn’t already set them up.” She said it’s a good opportunity for the mediator to find out what’s most important to you and whether you have tried to settle—“answers I am not likely see in a joint session.”
Clark also likes individual calls with mediators. “It helps me get a sense of what about my case may concern her, so I can flag and prepare my client, and get a sense of her personality. It allows me to share my narrative and see how it flies.”
Girshon said he wants “every opportunity to manage mediators’ expectations, and early on let the mediator know what’s extremely important to us before we’re in the mediation room.”
“For example,” Girshon said, “if the plaintiff attorney only wants his client to be reinstated in her job, and his client employer isn’t interested, I want the mediator to know that’s a dead issue.” He also likes to make sure the mediator knows that the plaintiff seeks a six-figure settlement and his client simply won’t go there.
Jansenson said that unless it’s a huge case, she wants the written submissions of a case to be 7 – 10 pages. She wants to see the facts, the attorney’s perspective of the law and to some extent any issues or problems with the case, as well as their settlement posture—but only if the submission is for the mediator only. She said she prefers to have these details to avoid surprises. She said you can have full exchanges of these documents or write submissions for the mediator’s eyes only, or have a hybrid where each party creates a sharable submission covering the facts and law and another for the mediator with settlement posture and private information.
Girshon said it’s important to “put the right team on the field to get the settlement you want. Bring someone with settlement authority. Not someone who merely has access to someone else and has to keep picking up the phone. Or,” he said, “bring someone with authority to settle up to a certain amount. Consider whether to bring a representative of an insurance company, if appropriate, or have them available by phone.”
Girshon said it is good form to let the mediator know who is coming to the session. As a defense attorney, he said, “Bring someone to mediation the plaintiff liked or respected while working there. You might have that person add something at the opening, or have that person communicate that ‘this is the best we can do.’”
Conversely, it’s important to know whom you’re not bringing to the mediation, e.g., someone the plaintiff doesn’t trust or “someone who might throw gasoline on the fire.” In that case you will want to have them available by phone.
As plaintiff attorney, Clark said that, in addition to the plaintiff, you may have a client whose decision relies on someone else, like a spouse or parent, so bring them. And, she said, “I want the defendant to bring someone with authority to settle for more than the last number they gave me. Not the harasser, or someone so invested in the issue that you get distracted from finding common ground.”
Kreitman asked about situations where a high demand is met with a low offer.
Clark said it’s important to sort out whether this is a negotiating tactic or really close to the defendant’s bottom line. “And you need to have a candid discussion to figure that out,” she said.
Girshon agreed: communication is key. “If we receive an outrageously high demand, we want to evaluate whether it’s worth our time to go to mediation. If I receive a high demand early in the day, we have to prepare clients in advance. It’s a process. If there is still a high number late in the day it’s more worrisome. If we had 10K and they wanted 100K, then the mediator met with the plaintiff and it went to 200K, that would be a problem for us. If they went in a different direction, it could be an impediment to the case ever settling.”
Jansenson said a party would only do this in the case of a new development, such as if the plaintiff gets fired in the course of the mediation. “But still,” she said, “communicate that to the mediator and the defendant.”
[Editor’s Note: In Part 2, we will pick up the panel’s discussion as parties move to the actual mediation.]
This article was edited for LexisNexis by Tom Hagy, managing director of HB Litigation Conferences and former publisher of Mealey’s® Litigation Reports.