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.
Good interview. Agree with the “cut-to-the chase” approach. State your damages and come to the table with authority to settle if your true intent is to resolve the matter!
Interesting article. Thanks very much!
I believe interviewing non-attorney mediators would bring a different perspective and greater depth to this series of articles. The articles appear to focus on mediation as an adjunct to the adversarial litigation process, as opposed to a non-adversarial alternative.
Thank you again.
Debra Healy, MS
Conflict Consultant/Mediator
I’m glad you find the article interesting Debra. Your suggestion to add interviews of non-attorney mediators is intriguing. As you suggest, such an interview could re-focus the discussion from mediation as an adjunct to the adversarial litigation process to a non-adversarial alternative. This type of interview might also provide an opportunity to explore the debate about how important (if at all) subject matter expertise and/or a law degree is to counsel when they are selecting a mediator to help resolve an employment lawsuit.
In my employee-side practice as an advocate at mediation, I have seen the process deteriorate somewhat. Increasingly, employers offer as representatives at mediation in-house counsel and HR reps, and they come into mediation with a firmly fixed position focusing on money. I am disappointed that mediators rarely take the time to confer with parties’ counsel before the mediation. The practice of asking the claimant to make a money demand as the first step after a joint meeting seems to me knee-jerk and often counterproductive. It immediately puts the parties in a very adversarial posture and neglects factors that are more useful at the outset than when they are addressed as afterthoughts to try to break an impasse.
David: I’m curious to learn what other factors you are suggesting a mediator discuss before moving into a discussion of the monetary settlement demand. Lorene
That depends of course on the nature of the dispute, and determining those factors is one of the reasons I advocate a pre-conference discussion by the mediator individually with parties’ counsel. Most obvious is the possibility of reinstatement in a case involving layoff or discharge. Employer reps and mediators often tend to dismiss any discussion of reinstatement as unproductive. It is not necessarily so. I had a client who was contacted by a headhunter about a position a company critically needed to fill. When he inquired about the duties, location, etc., he found his former employer was desperate to fill the post from which he had been laid off. The employer, a large corporation, had not considered contacting him. That case settled without mediation, but if the recruiting contact had not been made, the point might have been missed at the mediation conference.
Successful mediators have a broader skill set than many people realize. One critically important skill for mediators to possess is a solid understanding of the art of negotiation. If a mediator lacks this, he/she cannot fully understand the dynamics of dispute resolution.
Once you understand the nuances of negotiation, then you know that it is impossible to just come to the table with your numbers and authority to settle. As an attorney-mediator, I had to learn this the hard way. Attorneys are wired to “cut to the chase” and “stick with the facts” and move settlement forward by getting to the “bottom line.” We are comfortable working this way. However, the vast majority of parties in dispute are not comfortable with this approach to settlement or dispute resolution. This is why many attorneys have a hard time as mediators, i.e., they are not skilled negotiators. I have seen this over and over again in my practice.
Being an attorney does not mean that you are a good negotiator – almost the opposite. Attorneys are trained advocates and they are the best advocates in the world. However, negotiation is not advocacy. It is a different skill. And negotiation most often calls for a slow, get-to-know-you-as-a-person-before-I-will-consider-conceding-anything-to-you type of approach. Engaging in initial small talk, finding common interests and similarities outside of the dispute before getting serious about business take more time, but have a much higher chance of resulting in resolution. This is difficult for many attorneys to do. I still have a hard time with it after eighteen years. But I know that it works, so I prepare myself for this almost as much as I prepare for the case.
Thank you for joining the discussion with these insightful comments Susan. Successfully mediating employment lawsuits is more akin to doing a slow waltz vs. the fast swing dancing of litigation.