As a part of the on-going series on mediation of employment lawsuits, I’m thrilled to be able to share with you this week the perspectives of defense counsel Margaret (“Meg”) Campbell. Like Atlanta plaintiff’s attorney Ed Buckley, who I interviewed last week, Meg has over 30 years of labor and employment law experience and is one of only 30 attorneys here in Georgia who are current fellows of the esteemed College of Labor and Employment attorneys.
For those of you not familiar with the College of Labor and Employment attorneys, membership in this organization is by nomination only and is limited to those who have practiced employment and labor law for 20+ years and have met the following qualifications:
The highest professional qualifications and ethical standards based on the College’s acclaimed Principles of Civility and Professionalism
The highest level of character, integrity, professional expertise and leadershipA commitment to fostering and furthering the objectives of the College
Sustained, exceptionally high-quality services to clients, bar, bench and public
Significant evidence of scholarship, teaching, lecturing and/or published writings on Labor and Employment Law
According to its website, membership in the college “honors those lawyers who have demonstrated to their peers, the bar, bench and public through long performance related to the practice of Labor and Employment Law that they represent.”
Meg has also been recognized as a “Leading Lawyer for Business” by Chambers, as one of “The Best Lawyers in America,” as a “Super Lawyer” in Georgia and as one of the top 50 women lawyers in Georgia.
Meg is a partner in the Atlanta office of Ogletree Deakins and is sought after for her expertise and experience in complex class and collective action litigation, whistleblower investigations and litigation including Sarbanes-Oxley and Dodd-Frank cases, appellate practice, and restrictive covenant law.
Q. My understanding is that one of the things you look for in selecting a mediator is subject matter expertise in employment law. Can you tell me why subject matter expertise is important to you in a mediator and perhaps share an example of how the mediator’s expertise (or lack thereof) helped or hurt you settle a case in mediation?
I believe that a mediator’s subject matter expertise is important in two ways: first, because employment cases have unique orders and burdens of proof and defenses, a mediator whose substantive knowledge is up to date can be most effective in helping the parties on either side appreciate the strengths of the opponent’s case and the weaknesses of his/its own case by presenting them from the perspective of an authoritative disinterested party; and second, because employment cases often present complex damages issues, a mediator with deep experience in mediating – and perhaps in litigating – employment cases has significant insights into case valuation and the likelihood of potential verdicts.
From a defense lawyer’s perspective, mediators without expertise in employment law really are not equipped to analyze and communicate effectively to the plaintiff the significant effect that burdens of proof and defenses have on the potential outcomes and value of a case. I also think that a mediator’s particular expertise in employment class or collective actions, as the case may be, is essential to mediating those cases successfully. I would say that in every case I’ve ever mediated whether the mediator had employment law expertise was determinative in whether the case resolved.
Q. What is your reaction to plaintiff’s attorney Ed Buckley’s view that when defense counsel gives only a “nominal statement” in the opening joint caucus that it is hard for him “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?”
I always pay attention to what my colleagues in the plaintiff’s bar think about mediation because understanding what they have told their clients to expect informs my approach to achieving success in mediation. That said, in a single-plaintiff case my usual inclination is not to present an opening statement that argues about the plaintiff’s problems in the case. I believe that such opening statements can and often do polarize the parties and the proceedings at the outset – something I definitely don’t want to do.
I prefer to convey our client’s intention to engage in a productive mediation with a successful outcome, recognizing that we will not resolve our disagreements about the facts but promising that we will work to find common ground that allows both parties to take the opportunity to conclude the matter on terms on which they can agree and put the matter behind them. I can’t remember a case in which I had not already discussed with opposing counsel the factual and legal issues in the case before mediation, and I think that embarrassing my opposing counsel in front of his client is not a good way to build trust, but if I had facts or arguments that I had not already disclosed to the other side before mediation – or that it became clear that opposing counsel had not disclosed to his client – I would do that in an attorney conference or through the mediator, not in front of the plaintiff.
In a class or collective action mediation where individual plaintiffs typically are not present, I will give an opening statement that focuses on the important arguments in favor of the defendant’s position and highlights the plaintiffs’ problems.
Q. What are your two top pet peeves about plaintiff’s counsel in mediations?
I try very hard not to get peeved in mediations, because I know that it makes me less effective. There are times, however, when opposing counsel creates a dynamic that undermines the mediation, wasting everyone’s time and resources and making it more difficult ever to resolve the case short of trial.
Usually that happens when counsel is unprepared herself or has not prepared her client for the mediation. Most often that results either from the lawyer’s not having determined (or not having explained effectively to her client) the appropriate valuation range for the case in light of the facts and the law, or from the lawyer’s not having switched from litigation mode to mediation mode.
Of course, it happens from time to time that despite her best efforts plaintiff’s counsel either doesn’t have or loses control of her client. In that case, a strong mediator can be very helpful.
Q. What is the key to a successful mediation?
The key is thorough preparation.
The defendant’s lawyer must be fully-conversant with the facts and the law in the case and must have made a thoughtful analysis of the risks and potential outcomes of the case; she should have had at least preliminary discussions with opposing counsel to describe the defendant’s position on the case and a framework for possible resolution, and to gauge the plaintiff’s inclination toward compromise; she must have prepared her client (and any insurer) for possible developments in the mediation and the appropriate range of authority required to settle the case; and she must have provided the mediator with a thorough and candid presentation of the case.