Employment litigation is one of the most common areas of litigation. In addition, in general it is an extremely emotionally difficult area to litigate because of the significant emotions on both sides. For that reason, it’s an area of law that’s well suited for negotiation or mediation, given the time, expense and emotional cost a trial can inflict. It is important to understand that when employees lose their job, they suffer grief over the loss. That grief can create major emotional barriers to negotiations.
Help Cope With Losing A Job
Although everyone faces stress and grief differently, Lifehacker Magazine has addressed Elizabeth Kubler Ross’ stages of grief and applied it to the loss of employment. In essence, most people who’ve lost their jobs go through five stages of grief afterward, not necessarily in this order.
Denial acts as a buffer to protect the person from strong negative emotions like anger so the person can continue functioning. Denial in small doses may do some good, but not getting beyond it may mean the person doesn’t try to look for another job or seek other opportunities and continues spending money as if paychecks were still coming in.
This is probably why the plaintiff retained a lawyer. He or she is angry about his or her treatment and feels he or she has been wronged in violation of the law. The plaintiff feels that he or she has done nothing wrong but is suffering as a result for no good reason.
Though that anger may motivate the plaintiff to keep up the fight, he or she shouldn’t have so much anger that he or she can’t function or find other employment (which would create mitigation of damages problems).
Family, friends, and a professional counselor (if necessary) should try to help with understanding, guidance and advice. Let the person vent (but not dwell) on the situation. If you represent a plaintiff, it might help to suggest that they write about their feelings. Writing about the situation and feelings may help. It has also been shown to allow people to process their emotions and anger better.
The person may feel if they change or improve on something, things will change and a new job will soon be on its way or that they will get their old job back. Making positive changes is always a good idea but your client shouldn’t engage in pouring over all the “what if’s” of the former job and things he or she should, or should not, have done differently. Unfortunately, litigation does the exact opposite. It focuses the spotlight on all the flaws of the prior employment.
One major problem in the litigation process is that often the act of litigating the case can delay the entire grieving process. The litigation process often ends up being a prolonged negotiation phase. The plaintiff now feels that if this lawsuit goes forward all will be better. During a mediation, it may be necessary to make sure that the client has fully gone through all stages of grief so as to make sure that they are ready for acceptance process.
Dwelling on the negative consequences of the situation can result in depression. A plaintiff may focus on financial problems, increased stress in relationships and how losing the job could be a professional setback.
If you represent a plaintiff, you need to tell the client it’s OK to have these feelings, but try to get him or her to focus on the big picture. If your client maintains a daily routine (including searching for work or doing things that help in the search) it can give meaning and purpose. His or her schedule should include time spent on things the client enjoys doing. Exercise can also help someone with depression mentally and physically.
The client grasps the reality of the situation, understands it and has chosen to function and live his or her life. Your client can be objective about the situation and be accountable for their role in the litigation process.
Given how long litigation can take by the time negotiation or mediation takes place a plaintiff may have gone through all these stages. However, it is very possible, if not likely that the plaintiff may be stuck in the bargaining or negotiation phase because of litigation. Though a plaintiff probably still feels anger, it can’t be so much that it’s clouding his or her perceptions of the situation and he or she can’t make reasoned, rational decisions about resolving the lawsuit.
Understanding these emotions are critical to learning how to resolve an employment case in mediation.
Building a Practice
Get expert tips and tools to grow
your mediation practice.
Start here to learn the basics of dispute resolution.
Become a Member
Gain access to our premium 'Mediation Mastery' training & online learning program.
Join our Mailing List
Signup now to receive the Weekly Wrap, Perspectives Magazine, and other occasional newsletters.