Although counsel are comfortable in confrontation with each other, it is surprising how many attempt to avoid confrontation between the parties at all costs.   Mediation is not about coming to the table as friends to avoid conflict and confrontation, as many professionals would have you believe.  It’s about resolving disputes.  Inherent in the concept of “dispute” is conflict and without confrontation of that conflict head-on, there may be settlement, but there may be no true resolution for your clients.

In this case, rather than calming down the client, another approach his lawyer could have taken was to allow him to vent, with some basic ground rules, such as limiting abusive language and no physical contact.   In addition, once a plaintiff airs his emotion, it helps to have a response from the defendant.  In this situation, where the defendant is far less emotional, a well thought out and empathetic response to the plaintiff’s emotion may do more to calm a plaintiff and redirect a mediation than any lawyer or mediator is likely to accomplish.  It is often helpful for defense counsel to speak with plaintiff’s counsel and their mediator prior to the mediation to try to anticipate some of the plaintiff’s concerns.  This will give defense counsel an opportunity to help his client frame a response to those concerns which, while giving the plaintiff the understanding he may need to diffuse emotion, does not concede liability.

Once the minefield of emotion has been crossed, the mediator can focus on the goals of the parties to determine what resolution is possible.  In the case of our plaintiff who was terminated during his medical leave, it was easily determined that he desperately needed to maintain his medical benefits.  What was less obvious was that he had not ever received an explanation of the facts that led to his termination and that this was critical to the redemption of his self-respect.  For 30 years he had worked hard to support his family and was threatened and embarrassed when he lost that ability.  Once he had worked through the emotion to a point where he could discuss his personal goals, rather than the financial aspects of litigation, the parties were able to work together to craft a true resolution to the dispute.  His position with the company was restored, he received a reinstatement of his benefits, some back pay, and most importantly a lunch was held at the company in his honor, at which he received an award for his years of valued service to the company.

In the case of the young woman who lost her position after her maternity leave, the issues were very different.  Although the restructuring of companies and the resultant loss of specific positions is a legitimate business practice, it is also a frequently abused method of terminating long-standing employees who otherwise are not susceptible to termination.

In cases like this, in addition to the economic issues, there is likely to be an undercurrent of emotion on both sides, particularly where the employer is a smaller company, as each party may feel that they are a “victim” in the dispute.  Plaintiffs see themselves as the aggrieved party and defendants, because they often believe they are involved in the dispute needlessly, feel abused by the plaintiff and the dispute process, particularly when facing the burdens of litigation.

In this case, again it is imperative to diffuse the emotion, but because there is likely to be emotion on both sides, both parties should be prepared beforehand to listen to the other.  Again, a meeting or telephone discussion between the mediator and counsel can prove to be invaluable in setting the stage for effective mediation.  Once both parties had aired their anger and frustrations, discussion of the business situation was possible.  To the plaintiff’s great relief, there was evidence to support the fact that the restructuring of the company had been planned in advance of her maternity leave and had nothing to do with her personally.  It was also explained to her by her prior manager that he had questioned her about returning to work, not because of any ulterior motive, but because his wife had gone through that when she was pregnant and decided not to return.  Rather than malice, his questions were a misunderstood, and perhaps misguided, attempt to make friendly conversation.

Even with the best of clients, the early guidance of a mediator can be invaluable in helping them begin to accept that there may be more than one rational perspective to the situation.  Once this occurred in this case, it was resolved in addition to being settled.

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