"Effective Mediation For Employment
Author - Joe Epstein
Published - Preventative Law Reporter
Winter 2001, Vol. 19, No. 3, p. 29
review articles and
court decisions dwell
on the question of whether mandatory employment arbitration clauses are
enforceable. This discussion is important, but to some extent it misses the
point. Of all the alternate dispute resolution alternatives, arbitration is
most like the courtroom and carries with it the human and transactional costs
that are often seen as the negative aspects of litigation.
Some cases require publicity and certainly some court cases are necessary for
the development of employment law. In fact, the privatization of justice has
been criticized as diverting public issues into private settings.
Nevertheless, from a preventative law perspective, the focus needs to be
redirected to facilitating the development of in-house conflict management
systems that maintain the right to resort to arbitration or the courtroom, if
required, but which facilitate the development of dispute resolution as early
and as close to the source of conflict as possible. The development of such programs can create
transformative dimensions, namely empowerment and recognition opportunities.
Such programs reduce the costs associated with litigation and its brother-
arbitration. In-house dispute resolution systems and litigated case meditation
both provide parties with an excellent opportunity for creative control of
their own employment dispute.
mediation is emerging as the favored form of ADR for employment discrimination
offers advantages that are important to the participants. A safer atmosphere,
greater confidentiality, enhanced privacy, decreased emotional trauma, reduced
transactional costs, greater flexibility in the timing, scope and procedural
format, increased creativity in the remedies, increased opportunities for
empowerment and recognition and increased focus on interests rather than legal
positions are all advantages offered by employment mediation.
Given the increasing use of employment mediation and its accepted advantages,
this article has been prepared to guide attorneys in the mediation of their
The Nature of
cases involve not only workplace disputes but also the very personal core
issues of validation and self-esteem.
Being gainfully employed is more than a means of earning a living: "it
Hence, the employee who has suffered discrimination, harassment or retaliation
may well feel angry, betrayed, hurt, and devalued.
With the exception of the bullies as described in cases like Oncale
few accused desire the label of a harasser. The wrongly accused may feel
stigmatized, angry and humiliated. Even the justly accused may feel betrayed
and fearful of losing their job and or their reputation. Large
multinational corporations such as Coca Cola, Texaco and Mitsubishi do not
relish the tarnish to their reputation; much less the huge costs involved in
paying claims involving systemic workplace discrimination or harassment Whether
we are speaking of the corporate or individual offender or the group or
individual victim the issues in employment cases are, needless to say,
intense. Careers on both sides of an employment case may be at risk and
involved individuals can expect their lives to be examined under a microscope.
This is particularly true for the complainant. While we are constantly reminded
that "people who live in glass houses shouldn't throw stones", that
adage has never stopped defense counsel from their voyage of discovery and
attempted conquest. Individuals who have built their self-identity at the
workplace are especially vulnerable to the overwhelming impact of rejection and
the often-sudden loss of workplace relationships built over years. The
psychological dynamics of depression and related issues may be at work in many
of these cases. Attorneys, adjusters, corporate decision-makers, alleged
perpetrators and alleged victims must all be sensitive to these volatile and
intensely emotional issues as they arise before and during mediation.
advocates bring neutrals up to speed on the latest employment cases. They
supply the mediator with the motions and briefs in support of, or in opposition
to, motions for summary judgment and class actions. Thoughtful and persuasive
confidential settlement statements are submitted.
is imperative that mediators handling employment cases be perceptive and
understand the unique business issues and the rather complex psychodynamics
involved in these cases. Mediators need a good understanding for the workplace
reality. The mediator must ponder such questions as "What really happens
in the workplace Is there a conspiracy of silence Are the work evaluations
realistic What power imbalances are at work here
mediator must come to the mediation prepared to work hard, to probe, and to be the
"reality check". A good sense for people, good intuition and insight
into workplace power imbalances are important ingredients for effective
employment mediation. The mediator must come to the mediation prepared to be
empathetic, flexible and creative. Story telling and the ability to use humor
are skills needed to build the rapport and the trust required for successful
may bring different approaches to employment mediation. Some may utilize
"therapeutic mediation". In
"therapeutic mediation" the mediator considers the emotional dimensions
of the dispute and incorporates consideration of these uniquely personal
approach may have greater utilization with in-house programs or pre-litigation
mediation than during traditional mediation. Another approach gaining
popularity primarily with in-house employment dispute resolution programs, is
"transformative mediation" as promoted by R. Baruch Bush and Joseph Folger.
They suggest that we should view disputes as opportunities for growth and
transformation. The "transformation" occurs, in part, through the
"empowerment" of strengthening a participant's capacity to analyze
Moreover, transformation occurs because of the "recognition" that
takes place with the enhanced capacity to see and to consider the perspective
Other mediators use an interest-based or problem-solving approach. In such an
approach, the mediator helps the parties in conflict to identify and focus on
their needs and interests and search for mutually satisfactory agreements.
Still other mediators facilitate distributive or zero-sum negotiation, which
relies upon rights- based analysis. In
such negotiations the advocates typically seek to maximize the financial
advantage for their client.
the emergence of employment practices liability insurance, adjusters are
increasingly present at the mediation of litigated cases. Involvement of a participant whose interest is primarily
financial changes the interpersonal dynamics of employment mediation and makes
distributive negotiation more likely.
sum, the participant's choice of
mediator and their mutual design of the mediation process may be critical to
the success of the mediation. A
good employment mediator must have the capacity to be empathetic, build
rapport, establish trust, be a reality check and recognize the dynamics of
power differentials. A mediator engaged in employment mediation must be
capable of combining aspects of all mediation approaches and capable of knowing
when to utilize a particular approach.
timing of employment mediation is a critical element to its success. Litigated
employment cases should not be mediated too early nor should they be set too
late. Each party needs sufficient information to make an informed decision but
parties must be aware that too much discovery "bloodshed" may cause
positions to become frozen and settlement opportunities lost. Each party needs
enough information to adequately appreciate their risks and to fully evaluate
their case. This may be after an internal investigation, after the issuance of
a right-to-sue letter, after the deposition of the complaint and the accused,
neutral fact finding, or at some other point when sufficient information is
available to both parties. Given the attorneys fee component in employment cases,
it is possible to do so much discovery that settlement becomes prohibitive.
Similarly, if the case has been filed and if the case has gained a lot of
pre-trial publicity, the chances for pre-trial resolution may be lost,
as this intangible cost has already been incurred.
STRATEGIES FOR MORE EFFECTIVE EMPLOYMENT MEDIATION
step often overlooked in employment mediation is the customization of the
mediation design. Advocates and mediators alike, all too frequently, fall into
the rut of "cookie cutter" - one size fits all mediation. It is
essential that the mediator be creative and articulate in determining- with the
parties- the design of the mediation most likely to produce a satisfactory
result. Factors to be kept in mind when designing an employment case for
mediation are: (a) the nature of the accusations, (b) the personalities of the
accuser(s), the accused and the institutional decision makers, (c) the
conflict resolutions styles of the participants, (d) the workplace dynamics and
(e) the public interest issues. Design options include a pre-mediation
conference between counsel and the mediator, pre-mediation caucuses, staggered
starts, co-mediation, a pre-mediation discovery plan, an agreement as to
mediation attendees, etc. The advocates and the mediator might discuss their
expectations for the mediation. Are the participants anticipating a
distributive negotiation, an interest - based or problem solving mediation
process, or are they looking for transformative opportunities Do the
participants want the mediator to be evaluative, facilitative or is some hybrid
mix preferred Frequently, a mix of these mediation styles and techniques is
required for effective mediation.
It is highly recommended that the parties go
outside the typical mediation box and work with the mediator in advance of the
mediation. Too often advocates and
mediators alike bring a rights-based analysis to the mediation and forget to
adequately consider the significant emotional and environmental issues at play.
A pressure free, pre-mediation caucus with the effective utilization of active
listening helps the mediator and the participants to develop insight,
understanding, rapport, trust and respect in advance of the mediation. This
will greatly assist in enabling closure at the mediation. When going
outside the design box, parties should consider the number of accusers, the
number accused and the nature of the accusations to determine whether, for
example, if a diverse co-mediation team would be an effective approach.
Elephant Inside the Tent
As mentioned above, employment
mediation deals with profound emotional issues. It is important to keep in mind
that any rights-based analysis that neglects to address the importance of the underlying issues and
interests is often doomed to failure.
employment mediation are not expected to be psychotherapists but they should be
expected to be empathetically cognizant of the important psychological issues
that may arise and approach the mediation mindful of their potential impact on
the mediation. If emotional or psychological factors do interfere in the
mediation, referral to or consultation with a therapist may be appropriate.
sides in employment litigation must assess their case and develop a theme that
reflects their view of the facts and the law. Themes organize a case and are
persuasive. Themes should be utilized in mediation, just as they would be at
trial. One added advantage for utilizing a theme at mediation is that
participants often get a pre-trial reality check. Does the "theme"
have resonance with the mediator As the participants try the
"theme" out on the mediator, they must consider how it
"resonates" with the other side and how sincere it sounds to the
opponent. If an advocate does not have a theme to advance at the mediation, that
generally means the case has not been effectively pulled together. This failure
in preparation undermines the advocates credibility and the persuasiveness of
his/her presentation, thereby making closure at mediation more difficult.
self-respecting advocate would go to trial without meeting with witnesses and
reviewing their prospective testimony. Similarly, no rational advocate would
go to trial without exhibits. Given the modern state and federal rules of
civil procedure few advocates are able to go to trial without giving their
opponent full notice of their experts, lay witness, economic loss projections,
and exhibits. Nevertheless, participants in mediation often miss the
opportunity to make a good first impression at the mediation for fear of giving
away too much information. In reality, plaintiff 's advocates must show their
opponent why they should give the plaintiff money, a workplace accommodation,
etc. The pre-mediation preparation and the mediation conduct of plaintiff 's
counsel must reflect insight, determination, competence and readiness to go to
trial. Plaintiff 's counsel might consider (1) giving his opponent a version
of his/her "confidential settlement statement", (2) bringing a key
lay witness to the mediation, (3) making an expert available by phone and/or
(4) using vivid statistical visuals. On the other hand, if defense counsel
wants the plaintiff to settle early, to dismiss the case, or to settle modestly,
he should take key depositions, provide supportive statistical data and
file his Motion to Dismiss before the mediation. Defense counsel must show Plaintiff
's counsel and the plaintiff that he/she will be ready for trial and that the
trial will not be a "walk in the park". On the other hand, defense
counsel and his/her client might propose creative settlement options still
available for consideration during a mediation that might not be realistically
available at trial.
Preparation of the
reality is that advocates must prepare their clients for mediation. Just as an
attorney would prepare his client for trial, pre-trial rituals like
"role-playing" and "woodsheding" should be utilized before a
mediation. A risk-benefit analysis should be conducted before the mediation.
Weaknesses as well as strengths should be considered. Counsel and client
should carefully consider the client's interests and how those interests might
be addressed in mediation. Counsel and client must, at least, tentatively
establish a realistic monetary and non-monetary settlement target. This is
often a difficult task for advocates. More often than not advocates are hired
to be "gladiators"; however, clients need to be coached that
they require a "gladiator/dove" styled advocate at the mediation if
the participants are to accomplish conflict closure. In other words, advocates
at employment mediation need to be empathetically assertive.
They need to avoid the trap of seeking client approval.
Counsel need to seek out their client's underlying as well as overt interests.
Then, after thorough preparation of the client, the confident attorneys will be
better able to "counsel" their clients toward a satisfying closure of
Preparation of the
the objective of a particular mediation is to come to closure, the advocate
must take steps to get the other side ready for resolution. First, this
requires engaging in sufficient discovery (formal and/or informal) to allow the
opponent to see the weaknesses in his/her case. Depositions can provide
necessary information and can be used to impress the opponent of the advocate's
skill while highlighting weaknesses in the opponent's case. Disclosure of
expert reports from credible and respected experts assists with balanced case
sides should avoid the temptation of playing "lets-hide-the-ball".
If both parties play "lets-hide-the-ball" then each will be
evaluating different cases. If parties are evaluating different cases common
sense tells us that dispute resolution will be more difficult, that the
opportunity for transformative mediation will be lost, and that interest-based
(problem solving) mediation will be frustrated.
is often essential that counsel allow the participants to have their day in
court. Many feel that this means allowing one party or the other (or both) to
express their view of the facts and to give direct or indirect expression of
their feelings. Do not lose sight of the fact that counsel often become
emotionally invested in their case and that they, too, have to give expression
to their advocacy before they are ready for closure. The astute advocate
allows this venting to occur but not to polarize.
The astute advocate uses venting to reach out to the other side and to create
an opportunity for reciprocal listening. He or she creates the opportunity for
empowerment and reciprocal recognition of perspective. Reciprocal listening
skills provide the opportunity to address the underlying interests of both
parties and to discover any transformative opportunities. Purposeful venting
can create increased opportunity for conflict resolution. Along with venting
advocates most consider the appropriateness and the value of either
acknowledgment or apology. An acknowledgment is often appropriate and helpful
when liability is contested, but some level of harm accepted. An apology may be
necessary when liability is conceded and but the level of harm disputed.
advocate gains credibility at trial by acknowledging and
"pulling-the-punch" on perceived weaknesses. The same is true in the
context of a mediation. Furthermore, treating the other participants with
dignity rather than with disdain often goes a long way toward establishing the
bridge necessary for resolution. The effective mediation advocate avoids
displays of arrogance and unnecessary antagonism. Too often lawyers think that
being an effective advocate means that they need to annihilate and demean their
opponent. While this acrimonious view of advocacy may be effective, it more
often than not results in unnecessarily prolonging litigation. Similarly,
counsel may feel that the tough-guy annihilator is what their clients expect of
them. This perspective needs to be investigated and reconsidered before the
mediation. Coming on strong may be effective, but typically empathetic
assertiveness is more effective. Knowing your case and understanding people
can create the momentum that can bring the parties to positive closure.
is important to note that when counsel are impatient and rush to a
"take-it-or-leave-it" settlement position, they prevent the other
side from getting to a realistic place for closure and may misjudge their own
endpoint. Patience, listening, reflection, flexibility and
informed/velvet-gloved firmness are all important advocacy skills necessary to
be a successful advocate in employment mediation.
Tearing Down The Barriers to Dispute Resolution
the advocates goal in mediation is closure then he/she must be aware of, guard
against and tear down the barriers that frustrate dispute resolution. These
barriers include: attorney client enmeshment, irrational emotionalism, partisan
perception or bias, judgmental over-confidence, reactive devaluation of the
opponents proposals and the hired gun mindset.Partisan perception may be the most insidious of these barriers to dispute
resolution. Advocates and clients alike are disposed to perceive what they
expect to and wish to "see", as to what it is in their self-interest
they "want" to see." 
Unquestionably, effective mediation requires objective analysis, perceptive
listening, utilization of people skills and principled negotiation.
mediation may uncover the opportunity for creative solutions. Options
for consideration in employment cases may include reasonable accommodation, the
reassignment of the accused, the sanctioning of the accused, the reassignment
of the complainant and the training and retraining of the accused (and others)
within the workplace. Training may involve human diversity and multicultural
awareness issues. Counseling of the accused or the accuser in anger management,
conflict resolution and communication skills may be appropriate. Out-placement
services, severance packages and letters of reference are examples of options
that may be necessary in the employment case. Finally,
acknowledgement for the complainant is not to be ignored. The goal is to look
for underlying interests and to consider the possibilities for personal and
the parties are a hair's breadth from closure it is ludicrous for the
settlement to breakdown on confidentiality clauses, tax treatment issues, etc.
Such issues should be dealt with during the course of mediation. It is highly
recommended that if counsel has key settlement clauses they should be brought
to the mediation. These clauses should be discussed during the mediation and
then naturally incorporated into the Memorandum of Understanding prepared as
the mediation concludes.
are dealmakers and there are deal breakers. What conflict resolution style
(accommodative, avoidant, cooperative, competitive and collaborative) does the
advocate and the client bring to the mediation What style will work best to
bring the mediation to a successful closure Do the participants need
to step outside themselves and their conflict handling modes in order to
close the case The sophisticated advocate will be in touch with his/her feelings
and his/her clients' interests and adopt the style and strategy necessary to
and a half centuries ago, Sun Tzu, a Chinese philosopher and warlord, wrote a
book entitled, "The Art of War".
He has left some observations that thoughtful advocates in employment mediation
should carefully consider. "Ponder and deliberate before you make a
remember that "the true objective of war is peace" 
can empower the parties and create the potential for a transformative
experience. It may give the parties an opportunity for self and mutual
recognition and acknowledgement. Underlying interests as well as overt
interests must be recognized and creatively addressed. In employment mediation
counsel must be uniquely prepared to cooperate and to contest at the same time.
In order to be properly postured to both effectively contest and to effectively
cooperate during mediation, the astute employment advocate must have given
his/her opponent a reason to cooperate before the mediation. Preparation
beforehand, patience, and thoughtfulness during the mediation are important
ingredients in successful mediation advocacy. In employment cases it is
particularly important to consider the emotional content of the case, give your
opponent "face" and remember that your goal is to make
 William C. Heekin, More individual employment
disputes can and should be arbitrated, Jr. of Alt. Disp. Resolution in
Employment. 31 (Fall 1999); Nancy Welsh, Arbitration and beyond: Avoiding
pitfalls in drafting dispute resolution clauses in employment contracts,
Jr. of Alt. Disp. Resolution in Employment 35 (Fall 1999).
 Carrie A. Bond, Shattering the Myth: Mediating
Sexual Harassment Disputes in the Workplace, 65 Fordham L. Rev. 2489, 2507
(May 1997) )(hereafter cited as "Bond").
 Gilmore v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991); Armendariz vs. Health Psychcare
Services, ____ Cal.4th____, ____ Cal. Rptr. 2nd____, P.3d____ (Aug. 2000); Craig v. Brown
& Root, Inc. ____ Cal. App 4th ____, ____ Cal. Rptr. 2nd ____ (Oct.
 Compare Karl A. Slaiken and Ralph H. Hasson,
Controlling the Costs of Conflict, 53-104 (Jossey-Bass 1998) with Cathy
A. Costantino and Christina Sickles Merchant, Designing Conflict Management
Systems, 43-48 (Jossey-Bass 1996).
 Sara K. Trenary, Race rethinking neutrality and
ADR, Jr. of Alt. Disp. Resolution in Employment, Vol. 54, No. 3, 40-48
 Stephen K. Huber, Transformative Mediation in
the Workplace, Jr. of Alt. Disp. Resolution in Employment, 37-42 (Winter
1999)(hereafter cited as "Huber").
R. Harkavy, Privatizing Workplace Justice: The Advent of Mediation in
Resolving Sexual Harassment Disputes, 34 Wake Forst L. Rev. 135, 164
(Spring 1999)(hereafter cited as "Harkavy").
 Kenneth A. Sprang, Therapeutic Justice in the Workplace:
The Use of Imago Rational Therapy in Employment Disputes, Jr. of
Alt. Disp. Resolution in Employment, 53, 54 (Fall 1999)(hereafter cited as "Sprang")
citing Kenneth A. Sprang, Beware the Toothless Tiger: A Critique of the
Model Employment Termination Act, 43 American Univ. L. Rev. 849, 852
 Oncale v. Sundowner Offshore Services, Inc.
523 U.S. 75 (1998).
 Robert A. Baruch Bush, Joseph Folger, The Promise
of Mediation, Jossey Bass (1994) (hereafter cited as "Bush and Folger").
 Kenneth Fox, Exploring the Convergence of
Organizational and Conflict Theory: Can Mediation Support Organizational
Learning Jr. of Alt. Disp. Resolution in Employment, 30, 33 (Winter
1999)(hereafter cited as "Fox").
 John Conbere, Designing conflict management
systems to resolve workplace conflicts, Jr. of Alt. Disp. Resolution
in Employment, Vol.2, No.3, 33-34 (Fall 2000).
 See generally, Robert H.Mnookin, Beyond
Winning, 9-10 (Belknap Press 2000)(hereinafter cited as Mnookin).
 See generally, Stefan M. Mason J.D., Mediating
Litigated Employment Cases, Jr. of Alt. Disp. Resolution in Employment,
Vol.2, No.3, 60 (Fall 2000).
 Sun Tzu, The Art of War, (James
Clavell ed. Bantam Doubleday Dell Publishing Group 1983).
 See generally, Bernard Mayer, The Dynamics
of Conflict Resolution, 61 (Jossey-Bass 2000).