Early mediation in the litigation of employment disputes provides the parties an excellent opportunity to explore resolution and accomplish their true goals through diffusing the emotional and adversary nature of the dispute.

Consider the case in which a man in his mid-50’s sued his former employer after he was terminated for abandonment of his employment.  He had been a loyal and valued employee with this company for over 30 years and had taken a medical leave for some minor surgery.  It was his initial intent to return to work in a week or two, but due to complications during surgery, he was unable to return as scheduled.  In order to determine when to anticipate his return at work, the personnel director contacted his surgeon and primary physician and found that he was released from the surgeon’s care after the first two weeks.  Mistakenly assuming that the release from the surgeon’s care was a general release and that the employee was thus cleared to return to work, and without contacting the employee directly, the company terminated him when he didn’t return at that time.  Angry, confused and suddenly without a stable income, the employee immediately contacted a lawyer and headed into litigation.

In another case, a young woman employed by a large company for 8 years, became pregnant.  Although he had no indication to believe that she intended to stop working, her manager began to question her about whether she’d really come back after her maternity leave.  In doing so, he repeatedly referred to other prior employees who had made the decision not to return to work after having children.  When she returned from her maternity leave, she was not offered her previous position back, but a different position with equal pay and benefits but lesser responsibilities and far less opportunity for advancement.  She refused the position and her employment was thus terminated.

In its defense to her lawsuit for wrongful termination and discrimination, her employer relied upon the fact that during her absence, the company was restructured and her position was absorbed into several others.

Both of these cases went directly into litigation, and came to mediation early in the litigation process.  Both involved a very high degree of emotion and the loss of a stable income during a time of personal uncertainty for the plaintiffs and by the time they came to mediation, both plaintiffs had lost sight of their needs and personal goals in pursuing litigation.

In the case of the plaintiff who had been terminated after his surgery, mediation began shortly after the filing of the litigation, after only a minimal amount of discovery.  Although he came into mediation demanding damages for back wages, loss of benefits, emotional distress in addition to punitive damages, it turned out that money wasn’t the key to resolution for him.  It was just the only resolution that had been presented to him at that point.  At the outset, he was very angry and aggressive with his employer.  His lawyer was trying to keep him calm and telling him that this wasn’t the appropriate behavior for mediation, even removing him from the room at one point to calm him.  It became apparent to the mediator that unless this man was permitted to work through his emotion, resolution would not be possible.

A vital value of early mediation is the ability of the mediator to facilitate a release of emotional turmoil as well as the early identity of those issues which remain viable and important and those which can be stipulated factually in order to streamline the ultimate litigation.  And who knows?  After adequate discovery, a mediation session may be appropriate again.

Let’s pull back and refocus on our plaintiffs next week…

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