Saturday, May 25, 2013

Use Caution Not to attempt to Predict Outcomes

I've had a hard week.  I mediated four employment cases:  allegations of pregnancy discrimination (termination while on leave after the baby was born), disability discrimination (failure to promote by a current governmental employee), sexual harassment and a whistleblower case (by a warehouse worker based on his complaints of noxious fumes in the workplace).  It's been ten years now that I have been mediating.  It's a real risk that I believe I can predict values and outcomes based upon the briefs even before I meet any of the disputants.  Also, I work with a group of highly skilled mediators and former Judge's, who often engage in banter during our cases about their guess on values and outcomes. 
     My week's efforts were met with varying degrees of success.  In the first, I would never have imagined that the case or the facts had such a high value--but it settled easily and to the great relief and satisfaction of both parties.  In the next, the government's attorney refused to make any offer, despite the Plaintiff's attorney reducing his demand to 1/4 of his initial demand.  In that one, I believed that if I could just get Plaintiff to come down to a reasonable number, the Defendant would reward that gesture by making an offer, particularly since the Plaintiff was still working there.  Alas, complete and utter shut down.  Inexplicable and unexpected.  The sexual harassment case is still being negotiated, but suffice it to say the values being discussed are beyond my highest expectations. 
     The point in all of this rant is that after awhile, a seasoned mediator has a tendency to make predictions of outcomes which can obfuscate the negotiation.  Yes, it's helpful to get everyone into that coveted "zone of possible agreement" early on, but occasionally the contours of the end zone are entirely different than my expectations and I am reminded that there are many factors beyond the facts and law that influence the ultimate settlement (or not) in every case.