Nothing is more disheartening to an employer than an accusation of discrimination from a disgruntled former or current employee. Caught up in a web of procedural requirements, the employer must slog through a costly and seemingly endless state investigation or lawsuit. Accused of what all would consider a despicable act, the employer also faces the consequences of a damaged personal and professional reputation.
From the employee’s perspective, the prospects are equally depressing. Unable to cite the former employer as a reference in a tight job market, the plaintiff is faced with likely long-term unemployment and its natural companions: food stamps, embarrassment, isolation and fear. Meanwhile, a seemingly endless state investigation or lawsuit delays resolution and the hope of relief.
The Department of Labor‘s Dunlop Report contains an excellent discussion of the use of Alternative Dispute Resolution techniques to resolve workplace discrimination claims, from the first employee discussion through trial. (See http://www.dol.gov/_sec/media/reports/dunlop/section4.htm.) One notable feature of the Report is its emphasis on early attempts at resolution, beginning with in-house ADR. The Report also recommends binding arbitration, emphasizing the need for client participation in the process.
Recent research shows that litigants prefer mediation, client-centered negotiations, and bench trials to all other forms of dispute resolution. (Shetowkskys, Donna, Study: As Courts Struggle, Preference for ADR Grows, Daily Journal, January 17, 2014.) The data appears to be weighted heavily in favor of keeping the client actively engaged in the process. If resolution isn’t possible, clients evidently prefer the established wisdom of judges over juries. Taken together, these facts show that clients are expressing a clear desire for control over the outcome of their disputes, retaining some shred of self-determination.
Clients in employment cases are doubly anxious about that control, given the deeply personal nature of the accusation, and the loss of dignity that accompanies it. And yet, as advocates, too often we strive to “protect” our clients by excluding them from the resolution process. With a couple of new tools in our toolbox, however, we may be more open to ceding some of the control to the litigants who crave it.
We have all mediated many cases, whether as mediators or as advocates, and the pros (and cons) of mediation have been touted in enough articles to run the risk of satiety. This article explores the internal workings of the employment discrimination mediation through a fresh perspective: that of a state and private discrimination mediator and fiction writer. It provides a new template for enhanced resolution potential. If nothing else, I promise a more entertaining article than usual. With any luck, the article will provide at least one nugget of information and advice to enhance your practice.
An overview of the employment discrimination mediation landscape in California
Five thousand dollars. That should get anyone’s attention. It is also the potential cost of a private mediation.
Eighty-eight thousand dollars. That gets my attention. It’s also the median cost of a civil employment suit excluding expert fees. http://www.courtstatistics.org.
Five thousand dollars is a bargain in comparison.
The revised Fair Employment and Housing Act (FEHA), (California Govt. Code §12900 et seq.) now provides that before the State of California Department of Fair Employment and Housing (DFEH) can file a civil action against an employer, it must provide an opportunity to engage in mediation.
But not every case is investigated by the DFEH. Complainants often file an immediate request for a “right to sue” letter, allowing them to bypass the entire state mechanism and proceed directly to civil suit. As only the cases that are processed by the DFEH fall under the mandatory mediation provision, the “right to sue” cases proceed without state involvement, investigation or mediation.
Larger employers may find the lack of state involvement to be a positive, as they frequently have access to experienced counsel and can afford the expenses of litigation. Unhampered by a state-employed investigator (who is often seen as pro-employee), employers experience a greater sense of control than they do when the state is involved. Smaller employers, however, find the expenses of all litigation daunting, and the risk of loss presents a specter of bankruptcy or serious business damage.
Plaintiffs in civil non-DFEH actions lack the cost-free investigative and legal support of the DFEH. They must hire their own attorneys, who are unlikely to represent them on contingency unless the employer is a large company able to respond in damages. If the employer will be forced out of business by an adverse verdict, the case instantly becomes less attractive to the Plaintiffs’ Bar.
Especially in non-DFEH actions, private mediation is generally the most reasonable step once an action has been filed. But it should be considered well before the matter migrates to the court system. The delay caused by the congested courts is well-documented. The costs, while often better borne by the defendant than the plaintiff, eventually eat into the budget of even the largest employers. And those, while not impoverished by a mere complaint, are the most likely to be targeted by former employees, resulting in a volume of expenses that can spiral out of control.
From the plaintiff’s perspective, resolution brings closure and the ability to go on with life. Mediation rarely comes “too soon” for a party. But expectations rarely diminish as the case wears on, and a sense of investment, “I’ve come this far, I might as well see it through,” can replace the initial desire to get the matter closed.
These are all good reasons for getting cases into mediation, whether state-sponsored or private, before expenses mount up and positions get entrenched. But that argument is old news. The real question is how to make the mediation successful, and by successful I mean reaching a settlement where each side goes home equally unhappy, with an inkling that it could have been much worse, and with a glimmer of hope that the worst is now behind them. Sort of a “lose-less lose-less” proposition. So let us explore the best ways to enhance that possibility in the highly charged atmosphere of the employment discrimination mediation.
Employment discrimination is a deeply personal matter
For the complainant, the pain of the claim is enormous. Generally, and regardless of the merits of the case, the complainant is either deeply hurt or very, very angry. He or she is embarrassed and nervous. Our jobs constitute a large part of our self-identity and self-worth, as well as our livelihood. Whether the alleged discrimination results in the loss of a job, the loss of standing at the job, or a poignant demonstration of powerlessness, the employee is bound to feel exposed and helpless. Though expressed in different ways depending on personality, gender and culture, the underlying feelings are the same.
For the employer, there is the shock of being called a “racist” or a “sexist,” epithets that are stunning to those who have always regarded themselves as fair and unbiased. For the employer, supervisor or employee personally accused of the wrongdoing, the personal dismay of the accusation can also translate into fear or anger about the damage being caused to his/her own employment situation. For an alleged harasser, the prospects of future employment or promotion are dim indeed, and for a small business, the expenses and frustrations may push the company over the financial brink.
These are the parties entering the settlement arena. How can you help them achieve finality when there is so much at stake?
What adequate preparation looks like
If one more mediator tells practitioners how to prepare for mediation there may be rampant mediator-cide, but I beg you to hold your fire. There is a type of preparation not being done that is so critical to success that it is a miracle cases settle at all. If cases settle anyway then it can’t be all that necessary, you may reply. But while most cases settle anyway, properly prepared cases are more likely to settle. Properly prepared cases also settle with less trauma to both sides.
Less trauma is important not only to your client, but to you. Once the bloom of the settlement wears off, a party who feels betrayed or railroaded by a settlement is not the satisfied client who will bring future happiness to your office, or issue glowing recommendations to your board of directors.
VIEW, INTERVIEW, REVIEW
Your client knows the facts. So do you. You interviewed her when the case first came in. But you know so much more now. You’ve deposed the other party, you’ve produced documents and gotten theirs. Surely you’ve developed a new set of questions. This is the time to ask them.
At least a week before the mediation, sit down and INTERVIEW your clients with all the new evidence in mind. Be sure you have all of the right players at the table. The client with the most knowledge and the client with settlement authority are often not the same people. If there’s a carrier on the file, you have another layer of information and advice to glean. Then, ask the clients to tell their story again. As they go through the facts, stop them and ask questions. This is not to intimidate them but rather to gain the fullest perspective possible.
As you listen, think about what the opposition’s response will be. The aim is not to demolish the opposition’s case, but rather to imagine what the mediator, and perhaps the judge or the jury, will hear. How does it sound?
Next, look at the facts from the opposition’s perspective, and—here’s the new part—VIEWING the case from the other side, TELL the client what the case sounds like from the opponent’s position. This is extremely hard to do, and critically necessary. Your client may have been breathing the ether on her case for so long she cannot imagine the other side.
Now ANALYZE the case anew. Do you need more settlement authority? Is it time to revise the estimate for the carrier or lay the foundation for a different settlement with the client?
And then the really interesting part begins: Ask your client how she feels about the case, the opposition and opposing counsel. Yes, use the feels word! Clients are people, and corporate clients are run by people. Is your client worried about demotion, loss of her own job status, lowered bonuses depending on the outcome of the case? Has the case caused her to be viewed differently by her superiors, or in a small company, is the case sucking up resources that are badly needed elsewhere?
Finally, be frank with your client. Prepare your client to let go, to release the hope of vindication, a perk rarely found in our system. Is there a settlement that will allow her or her company to move on? Be mindful of the sense of devastation that a settlement can bring: Your client has been called a liar, a cheat, or prejudiced, and is now being asked to write a check to her accuser. Imagine yourself in that situation and the real difficulty of settlement will become clear.
It is up to you to prepare your client so that when the moment comes, the settlement will not be the final crushing blow, with you on the “other person’s side”, but rather a step forward in letting go of a weight that has been dragging the client, and her business, away from the work and prosperity that are rightfully hers.
By Claudia H. Long