Earlier this week, I kicked-off a blog series about workplace mediation. I’ve dubbed this series the “Atticus Finch Walk In Your Skin” and over the next several weeks I will be interviewing various plaintiff’s counsel, in-house counsel and defense counsel to get their perspectives and learnings about how to most successfully mediate workplace disputes.
To kick us off, I’ve invited plaintiff’s attorney Donna Ballman to join us. Donna’s firm is located in Ft. Lauderdale and she represents employees throughout Florida. Her new book, Stand Up For Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards, was recently named the Winner of the Law Category of the 2012 USA Best Books Awards and is currently available for purchase. She’s been practicing employment law, including negotiating severance agreements and litigating discrimination, sexual harassment, noncompete agreements, and employment law issues in Florida since 1986. To read Donna’s full bio click here.
Q. What’s the worst thing you’ve ever seen a mediator or defense counsel do during a mediation?
A. The absolute worst thing I’ve seen mediators do is display an obvious bias, which is a huge no-no. When they make it clear that they’ve taken a side, then they lose their credibility and it makes the case way harder to settle. I find that clients who think the mediator is biased are less likely to settle the case at mediation. It hasn’t happened often, but it does happen.
Other than this obviously improper behavior, one of my pet peeves is the trend toward marathon mediation. When I started mediating, mediations were scheduled for 2 – 3 hours. The trend today is to hold mediations that last 6, 9, 12 or even more hours. I actually did an article about why I think marathon mediations don’t benefit employees, and what can be done to stop them from happening.
As to management-side counsel, the worst thing I’ve seen happen is an attorney who comes in and starts attacking my client. They do a big statement on every reason in the world why my client was a terrible employee and is a terrible human being. What that tactic does is makes my client want to have their day in court. They dig in their heels and don’t want to even discuss settlement. The better tactic is to leave the attacks for the courtroom and leave them out of mediation.
I actually had two mediations where management-side lawyers told their clients that they guaranteed they’d win on a certain issue, which meant the case didn’t settle. In both cases, those lawyers lost those issues in court. I’d have loved to have been a fly on the wall in the client meeting where they had to explain what went wrong with their guaranteed win. Only an idiot would guarantee a result to a client. No lawyer can predict what a judge or jury will do, and experienced lawyers know this.
Q. Have you ever had a situation where you saw or heard something before a mediation that made you think the case would never settle? What happened?
A. I’ve had cases that I thought would never settle that ended up settling at mediation, and cases that should have settled that didn’t. Sometimes hard cases settle because of a good mediator, but I think the lawyers also have a lot to do with whether or not cases settle. If a lawyer comes into the mediation with the intent to negotiate in good faith, and really explains what a long and drawn-out process litigation is, then I think their client will have the right attitude and try to settle in good faith.
I had one case where I’ve known opposing counsel for years on multiple cases. We were mediating and in caucus. The mediator was saying things to me that didn’t sound like what I usually hear from this lawyer. The lawyer finally came to me and asked to speak with me without the mediator. We compared what the mediator was telling each of us and realized that she wasn’t relaying information or offers correctly to either side. We sat in the room and settled without the mediator. The mediator seemed surprised when we came out and told her to write it up. If you have a good rapport with opposing counsel, it can sometimes make a world of difference.
Q. What are the top two most effective tactics you’ve seen a defense counsel use in a mediation?
A. If defense lawyers come in with a reasonable offer to begin with, I think it goes a long way toward showing that they’re negotiating in good faith. Too many defense lawyers have a standard lowball offer ($5000 being the most common one) when they know the case won’t settle for that. Lawyers that put a real number on the table and don’t start with an insult can really help convince my client that they are serious about settling. A lowball offer is usually considered a slap in the face by the employee, and it makes the mediation more difficult.
The other thing that really helps me convince my client to settle at mediation is a defense lawyer who can present me with some evidence. If you claim that my client was written up 20 times, bring the write-ups. Sometimes my clients see them and can show that they were falsified. For instance, a write-up without my client’s signature is a red flag. If we can point this out, then the employer may realize that their fake claims won’t fly. Sometimes my clients “forget” that they were written up for certain offenses, and seeing the write-ups can help convince them to accept a reasonable offer. Defense lawyers who hide the evidence and tell me things but won’t show me the proof are asking my client and me to take a huge leap of faith that we’re being told the truth. There are very few lawyers who have built up that kind of trust with me over the years, and even fewer that my clients will trust. Why hide the evidence? It will come out in court anyhow. Don’t waste everyone’s time claiming you have evidence that doesn’t exist or that you won’t show me.
Addendum: To get the perspective of defense counsel and Fox Rothschild partner Richard Cohen click here.
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I thought the above commentary was particularly on point. I guess the only big thing I would add to the commentary is that when the Mediator shows a significant degree of empathy, it makes it much easier for the parties to listen, and to ultimately settle. Otherwise, I felt the points made were particularly good and often indicate that the mediator has not had enough relevant training as a neutral mediator. Thank you for your post.
I was a contract mediator for the US EEOC for 8 years, so I am familiar with this type of mediation. I guess I would like to comment on the issue of a “low ball offer” to close the case. It has always been my feeling as a mediator in these types of cases, that for an attorney to come in and put ANY offer on the table without hearing what the other side had to say and what they expect is a mistake. I think that the chances of settlement are much better if the employer’s attorney has some concept of what the employee is expecting before putting any offer whatsoever on the table. Thus, they do not want to go too high, and they also even more so, do not want to put an offer that is an insult on the table either. So, I think it is much better if the employer and their attorney get some concept of the expectation of the employee before making any offer whatsoever. Thank you, Jon L.
On the topic of a case that you are sure will not settle, I would say, I NEVER go in with that kind of a position as a mediator. I always start out with the belief that ALL cases can settle under the right circumstances. In the 8 years I worked for the US EEOC, I mediated about 120 mediations. My record of settlement was 75%. I never go in believing that a mediation cannot settle. I always go in believing that ANY case can settle, if the right circumstances and the correct approach is taken. I use a very empathetic style, under the belief that people want to feel that they are heard and understood. If they feel that way, the chances of settlement usually are greatly enhanced.
The worst thing I ever saw a mediator do in an EEOC mediation is for them to appear, for whatever reason, that they are NOT neutral. When that happens,usually one side or both walk out.
Donna’s comment about “marathon” mediations resonated with me. I have struggled with the issue of not giving up too soon, but not going on too long. You don’t want to go on too long, because people lose the ability to make good decisions when they are fatigued. On the other hand, you don’t want to give up too soon, because most cases are going to settle; the key question is when. Many will settle at this mediation session if you just hang in there. The pivotal question is sensing when enough is enough.
Very interesting. In particular I appreciated the emphasis on the role of the lawyer in mediation. The lawyer that, in good faith, seeks mediation makes a good customer service. A theme very topical in Italy these days.
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