Published: November 2015
By: Jeffery Grubman
Employment litigation has developed into a well defined and broad reaching area of law with attorneys who focus all or a meaningful part of their practice representing parties engaged in this type of litigation. The cases arise under numerous federal and state statutes and include the following: 1) age, gender, race and pregnancy discrimination, 2) individual, collective and class action wage and hour, 3) disability and pension benefits, 4) whistleblower and retaliation, 5) sexual harassment, and 6) breach of employment contracts, including non-compete and trade secret claims.
Although the types of employment cases vary considerably, there is a common theme: the plaintiffs are individuals who believe they have been mistreated by their employers. The employers almost always deny the factual allegations and at least some portion of management is typically outraged or at least extremely annoyed by the allegations. Consequently, employment mediations tend to be emotionally charged. At the same time, the cases usually involve a complex body of statutory and case law. This requires a mediator who can empathize with the employee and employer, make them feel comfortable and engender trust. At the same time, however, the mediator must understand the law and be able to discuss the law and how the facts of the case intersect with the applicable law.
Many mediators describe themselves as either facilitative (providing a forum for communication among the parties and helping to explore settlement options without expressing opinions or pointing out potential weaknesses in the parties’ cases) or evaluative (pointing out weaknesses in the parties’ legal cases and perhaps even offering potential appropriate settlement terms). To be an effective mediator of employment disputes, a mediator should not think of herself as being exclusively evaluative or facilitative. She must be able to listen actively to each side’s concerns and empathize with their situation. However, she should also be able to give feedback regarding potential challenges with their case. Those challenges may relate to legal pitfalls, the stress and potential embarrassment that may be associated with protracted litigation, and the cost and time involved with this type of litigation.
A mediator of employment disputes must also be flexible with his or her approach to the mediation process. Some employment mediations are most productive when the parties spend the majority of the mediation in joint session with the parties expressing their feelings. Some attorneys wrongly believe that any direct conflict during the course of a joint session is harmful to the overall process, which is usually not true. However, other employment mediations should be spent primarily or completely in caucus, when for example the employee is intimidated.
In a recent mediation of a collective FLSA overtime case involving long term and still employed blue collar workers of a local company that had been acquired by a national company, it became apparent that the employees were more concerned about their treatment by their supervisor than the alleged lack of overtime payments. The employer’s corporate representative was the head of human resources from the out of town home office. After an initial joint session and several unsuccessful rounds of negotiations in caucus, the head of HR met with the employees without counsel present. The employees were given the opportunity to air their concerns, and the head of HR promised to take certain actions. Once the employees felt that their concerns had been addressed, the case settled almost immediately thereafter.
This story underscores an important point that every employment mediator and litigator should understand about the mediation process: unless and until the parties are given the opportunity to tell their story and get things off of their chest, it is very unlikely that a case will settle in mediation. Therefore, early on in the mediation process, the mediator should give the parties an opportunity to vent and tell their story. Whether that occurs in joint session or in caucus with the mediator is for the mediator to evaluate with input perhaps from the attorneys. Some people absolutely want to tell their story and take quite a while to get through it. These kinds of people were once described to me by a psychologist as “painters.” If painters are not given the opportunity to tell (or paint) their stories, the mediation will go nowhere. Other people would prefer not to give a narrative and instead want to answer the mediator’s questions. The same psychologist described these kinds of people as “pointers.” However, the mediator will not know initially if he is dealing with a painter or a pointer and he must give the parties, especially the plaintiff in an employment matter, the opportunity to be heard.
Employment litigation is an ever evolving and growing area of the law. The successful mediation of employment disputes requires a mediator who understands how to interact with and gain the trust of angry, emotional people while at the same time having the ability to understand and explain how the fairly complex body of employment law impacts the parties’ legal case. It is important for employment litigators to find the mediators in their areas who possess these qualities.
Jeffrey Grubman is a mediator and arbitrator with JAMS. He is based out of the Boca Raton and Miami offices but mediates cases nationally. His practice focuses on employment, intellectual property, probate/trust, securities/ financial services and commercial/business matters. The information contained in this article does not constitute legal advice and are his opinions and not the opinions of JAMS.