Saturday, June 15, 2013

Re-Framing to Present the First Offer in a Better Light

    Though sophisticated parties are often frustrated by the length of time it takes to get to the negotiation of numbers in a mediation, the time is always well spent.  During that first hour or two (sometimes many more), the mediator can really listen to the parties and then formulate a plan for how best to approach the delicate dance that is inevitably to follow. 
     This week, I mediated a sad employment situation where an employee was terminated by her Supervisor, 10 years her junior, without a real explanation or what most employees would consider to be "good cause".  The problem is that here in California, an employer doesn't need good cause to terminate an employee who serves "at will". 
     Still, it was clear to me that the owners of the medical practice felt awful about the way this termination had occurred.  It was simply a reaction by a new Supervisor to a seemingly insubordinate, though much more experienced employee.  When she challenged him in the presence of other co-workers and a client, he simply couldn't tolerate her and exercised his broad managerial discretion in firing her on the very next day.  I am reminded of the situations which I observe increasingly where counsel on the one side have 3-5 years experience (making them under 30 years old) and their adversaries have 30 or more years experience.  It's a challenge to assert the authority without the experience in those circumstances, too.  What she saw as retaliation for whistleblowing, he saw as firing an at will employee for cause.
     The tool I engaged in order to begin the negotiation on that case was to articulate the employer's remorse that this loyal and competent employee had been fired without any severance or explanation (without admitting any liability for retaliatory misconduct, as she had alleged).  I did that by framing the first offer as a severance offer:  based upon her years of service, they began with an offer that was equivalent to a one month's severance pay.  Ultimately, the case settled on a mediator's proposal of several times that amount, but by carefully re-framing the initial offer from what appeared to be a "nuisance value" (less than $5,000) to a calculated offer based upon two weeks per year of service (often considered a fair severance package pre-termination), I was able to drive home the legitimate feelings behind the offer in a way that the Plaintiff could, for the first time in the life of the case, appreciate and ultimately accept.
     The Employers too, felt better about paying a "severance" than they would have had I couched it as a penalty or actual damages for wrongful termination.  While they believed the termination was wrongful, they also understood that the way this employee was terminated (the day after she had raised legitimate concerns about overtime pay) was problematic.  Settlement was the best solution.  Re-framing to hang the whole incident neatly on a wall, behind both parties, was the best way to conclude the dispute and look forward to using more caution in managing other employees in the future.