Friday, August 2, 2013

Avoid Taking Shortcuts in Mediation

       There is always a tension between the desire to get to the agreement and the arduous process of negotiation that takes you there.  This week, I had two very similar lawsuits:  both for wrongful termination in discrimination.  In both instances, the former employer claimed there was a non-discriminatory reason for the termination.  Both of the former employees had since found other work, but had never been given what they considered to be a genuine explanation for their termination, nor any compensation for the time and anguish they had lost.

       Since I knew how the first case had settled, I was eager to gently nudge the parties into the same pattern of negotiation in the second case.  For that reason, I thought it was safe to skip a few steps in the process.  I did not take the time to develop a rapport with the clients, choosing instead to forecast where I thought the case would end up to the lawyers.  I failed to get the clients to buy in to the process early on and ultimately hit a stall in the negotiations before it was completed.  This left a lot of uncomfortable explaining to be done by the lawyers to their clients. 

     Luckily, I sensed that the entire mediation was going too quickly for the Defendant (who wanted to slow down the pace of his moves in order to get to the strategic end-point at the right moment and not before).  For the Plaintiff, who had an infant at home, the negotiation was going painfully slowly, since she had been left alone during much of the day while I conducted the negotiation through her lawyers.  Once I circled back to both of the parties, we could begin the negotiation in earnest and I have every expectation that within a few days the case will settle.  Still, once everyone departs from a mediation hearing, each offer and counter-offer can take days to communicate!  No time savings there. 

     Those of us who mediate routinely, including counsel, need to be ever mindful that taking short cuts is dangerous and may ultimately slow down the resolution of conflict.