Wednesday, August 27, 2014

Balancing Fairness and Justice: When Just Right isn't Enough

As an arbitrator (or a Judge) we have limits--on our outward demonstration of compassion, our creativity in crafting appropriate and fair remedies and our moral indignancy where wrongs occur without remedies.  As poorly as we may feel about how someone was mis-treated, we are constrained to follow the letter of the law (even where it may be at odds with it's "spirit") and dole out remedies only where each element of a given cause of action has been proven by a preponderance of evidence together with actual, credible, available damages.  Yet, life is messy.  Memories fade.  Documentation is not always what we wish it were and hindsight is not always perfect.  At trial, the evidence may not be sufficient to meet those high standards.
This week I was challenged by a multi-day arbitration where I felt personally torn between the dictates of "justice" (technically, the respondent had no legal obligation to keep an unwanted, at-will employee when a new Supervisor came in who disliked him) and the cry for "fairness" which may have dictated he be given some notice, explanation, that the termination be based upon legitimate "cause" or at least that he be given some recognition for the many years of service that the employee had given prior to the termination.
My struggle ended with my own suggestion to the parties that before they finish putting on all of their evidence (and possibly becoming further emboldened in their positions) and before I was forced to apply the law and reach a verdict which would be adverse to one and victorious to the other, perhaps they would like to engage in settlement discussions.  Five hours later, and to my great relief and their great surprise, they had arrived at a very creative and fair settlement--which had less to do with "justice" than my verdict would have, but everything to do with "fairness".  I am confident that 2 days into trial, had I not suggested this approach, the parties would not have recommended settlement discussions to their respective clients.  Both had engaged very competent counsel to win.
Sometimes, a neutral third party is exactly what the parties need to arrive at the delicate balance between "fairness" and "justice" that we try to maintain.  Do other arbitrators dare to recommend settlement discussions during the evidentiary hearing?  (I did not serve as the mediator, by the way, because no one was expecting this would work--so they wanted me to continue the hearing if it failed.)
I offer this experience as hope for a more balanced future outcome on the tough ones!

Thursday, August 21, 2014

Mediating with mental Illness

I am increasingly aware that there is a broad spectrum of frustrated individuals amongst us.  Some turn to their doctors, others to lawyers, still others to clergy members, best friends or family members when problems seem too great to cope with on their own.  What I learned this week from a psychologist who observed a hearing I conducted,  is that many people with mild to moderate mental health disturbances seek out validation for their conduct (or vindication for  the misconduct of others) through repeated legal challenges.  Whether they are truly "vexatious litigants" or merely forever challenging authority in their work place or their communities, there are plenty of instances where my non-professional opinion leads me to conclude that something other than the facts and law are driving the particular dispute before me.  As we often say, even with those not mentally ill, "it's never just about the money".  In those cases, it would appear to me that the best "treatment" that a mediator (or Judge) can offer is to allow the individual to fully vent, demonstrate attentiveness and understanding and then proceed to work to find the best outcome possible based upon that genuine understanding.
Still, I am not a psychologist and frankly have no confidence that what I do as a mediator is adequate to "hear them out" and allow the necessary venting.  Sometimes, in fact, I am tempted to blow up at them and recommend they seek out mental help, not legal help.  Of course, I never have allowed myself to go that far, but I wonder what others do to manage parties who exhibit signs of mental illness in the course of the mediation?  Can it be ignored? Can it be helped or changed? What are the best strategies to manage these challenging disputants?

Thursday, August 14, 2014

Keeping Your Balance in mediation

Mediators are called upon to be chameleons:  we need to take on the stripes of each of the parties, while steadfastly resisting all urges to lean to one side or another, thereby not only compromising our own neutrality, but perhaps tipping the scales of justice.  This week, I found myself less than neutral when a woman younger than I teared up and complained to me that the muscular sprain that she suffered 3 years ago when she slipped in a store that she was suing, has kept her from working, having intimacy with her husband and basically has ruined her life.  She still wears an orthopedic brace and claimed to have severe and disabling pain throughout the 1/2 day hearing.  Despite the good work that I managed to conduct between the parties as to likely outcome of both liability and damages, Plaintiff refused to accept her attorney's recommendation of a respectable settlement/compromise in the disputed claim.
Be reminded that 1 month ago I suffered a fracture of my foot and chipped two bones in my ankle.  I am still wearing a non-weight bearing boot and still managed to conduct no less than 8 hearings since the accident.  Although I am uncomfortable, I am in no real pain and my bones are healing as they are expected to. Still, it was excruciatingly hard for me to summon up genuine sympathy for the Plaintiff--whose injuries, by comparison to mine, were minor and long ago!
At times like these, I need to remind myself that my perspective can never be substituted for the parties in the dispute.  I am engaged to facilitate the analysis--but in the end, the decisions, the risks, the rewards are all in the hands of the disputants.  In Yoga, there is a position of balance that mimics a tree (See inset).  At times of great conflict, it's useful to have such a position to resort to--a kind of momentary "time out" to re-gain that perspective and re-focus on the dispute at hand.  Mediators sometimes call this technique "going to the balcony"--a visual of taking yourself out of the dispute to re-gain that "birds eye view".  I'm not sure I accomplished that in this hearing, but it's a good reminder that even a person with a broken foot needs, occasionally, to balance on one leg.
What techniques do you engage to keep yourself balanced in the negotiation--or is it okay to lean on one side or the other in these circumstances?

Thursday, August 7, 2014

When will this be Over? The Agony of the Drawn Out Mediation Session

After over a decade as a neutral, occasionally I can see where the parties will go and that settlement will be accomplished fairly early in the process.  Last week, I had the pleasure of being "shadowed" by a student of mediation, who asked me quite directly, "Why is it necessary to do this back and forth in these instances?  Why can't the parties just get to their number, since it's clear at the outset there will be an acceptable number in a close range?"
As in everything worthwhile, my response was that if the parties had to work for the resolution, they would also have some ownership in it.  In my hypothetical dispute, the initial demand was $100,000.  The initial offer was $10,000, but confidentially, the defense counsel told me he'd never go beyond $50,000.00.  The case settled at a mid-point of $45,000.00 some 3 hours later, and both sides felt triumphant.  I am confident, as I assured the "mentee" shadowing my hearing that day, that had I made the offer of $45,000 as the first (but final) offer as against a $100,000.00 demand, the Plaintiff and her lawyer would have demanded $90,000 and would not have felt as good about ultimately accepting $45,000. as a compromise.  In fact, they may well have rejected that offer and let slip away a decent compromise.
Although sophisticated parties and their counsel are often impatient and want to begin the negotiating process and conclude it quickly, shortcuts are dangerous when the mediator is attempting to manage expectations, weave in sensible tidbits from the varying versions of the factual history and continually assess the likelihood of success if the matter does not settle on that day, together with the costs attendant to a failure to reach an agreement.
In what ways do you pace your negotiations for maximization of success?