As a part of my ongoing series on workplace mediations, I recently caught up with esteemed plaintiff’s attorney Edward D. Buckley. Ed is a founding partner of the Atlanta law firm Buckley & Klein, LLP, which is one of Atlanta, Georgia’s oldest and largest law firms focused exclusively on representing employees—not employers—in labor and employment law. Ed and has been representing employees in civil rights and other employment litigation cases since 1983. He clients range from CEO’s of Fortune 500 companies to entry-level employees.
While Ed has won numerous multi-million dollar verdicts for employees in race discrimination, sex discrimination, sexual harassment and tort cases, he has also mediated and settled numerous cases on behalf of employees in age, race, sex, age, and national origin discrimination claims for six, seven and eight-figure sums.
Ed is highly respected by members of both the plaintiff and defense bars and I was excited he was willing to share his perspective on workplace mediations.
Q. How has your approach to mediation changed over the course of your 30-year career?
A. I spend more time and effort preparing for it. I think it is important for the plaintiff to give an orderly, organized presentation and have documents and, if appropriate, statements on the ready which will support his or her claims. Defendants and their counsel are not only looking at the merits of the case, but are also sizing up plaintiff and her counsel. A mediation is not a trial, but it is important for the defense to know I am ready for trial.
Q. What is your reaction to Richard Cohen’s (partner in the NY office of Fox Rothschild) answer to my question “When plaintiff’s counsel doesn’t permit his/her client to talk in the opening session of a mediation how does that impact your evaluation of the claim?”
Richard answered as follows: “I immediately get the impression if I have not deposed the client that she would probably make a bad witness since she is being prevented from speaking, which hardens my position. Similarly, I get the sense that plaintiff’s counsel is unsure about the case or her client’s ability to communicate the facts. And if I have already deposed the client, my guess is that the other counsel does not want to expose her to being “impeached” if she changes her story.”
A: That is an interesting perspective. I think there is no one-size-fits-all answer to the question of whether the plaintiff should speak in a mediation. If the case is a multiparty case, time alone may not allow all plaintiffs to speak. I do think it is a good idea, where possible, for the plaintiff to speak about damages. This statement should be carefully prepared. Even if the plaintiff is not very articulate, the emotion that comes across may benefit the process.
Q. What are the two most ineffective tactics you’ve seen defense counsel use in mediating a workplace dispute?
A. It seems to me that more often than not, defense counsel makes a nominal statement at mediation, almost a non-statement, perhaps on the strategy that he or she should give out as little information as possible. That causes me two concerns: 1) if defense counsel does not want to state her defense with some vigor, are we really conducting the mediation to settle the case, or just as a device for the defendant to get “free discovery.” 2) it is hard for me to find a reason to persuade my client to move if I have no statement from the defense. If they don’t tell me why I have problems, perhaps I don’t have any, and I have no reason to move off my terms.
Another problem is the “nickel and dime offer.” If that is what the defense wants to do, then lets not have the mediation. I go back far enough to a time when we regularly settled cases over the phone. Mediation is a great way to compress that extended process into a day where all people with authority are present and able to settle the case.That is a great thing, but a waste when there is no intention from the get-go to make a significant offer. This is not even an intimidation tactic. It just inflames the plaintiff and makes the case harder to resolve down the road.
Finally, defendants and their counsel should come to the mediation with a person with full authority to settle the case. I always do.
Note: This is the fourth installment in an on-going series in which I interview various plaintiff’s counsel, defense counsel and in-house counsel to get their perspectives on what makes a successful or unsuccessful mediation. In sharing these perspectives, my goal is to generate a rich discussion that helps us all improve our mediation skills.
You can read the kick-off post for this series, by clicking here, and my interviews with plaintiff’s counsel Donna Ballman here and Fox Rothschild partner Richard Cohen here. To read the response of defense counsel to some of the comments made in this Q&A by plaintiff’s attorney Ed Buckley, click here to read my Q&A with Ogletree Deakins partner Meg Campbell.