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Friday, January 27, 2012

Marathon Mediations Aren’t Good For Employees

I’m a mediator, and I’ve been one pretty much since mediation has existed. When I was trained, in the olden times, mediations were scheduled in 2 – 3 hour sessions. If they lasted longer and the parties were making progress, the mediation was reconvened another day, when the parties were fresh. I’ve found that most cases, if they’re going to settle, can settle in 2 – 3 hours. Yet I find that mediations these day seem to be expected to last 6 – 8 hours or more. So what’s happened to those reasonable-sized mediations?

I actually recently had a mediator say to me recently that her mediations frequently go until midnight. She was quite shocked when I responded that this one would not do so, and that, in fact, I had an appointment in my office at 4:00.

I started wondering. Am I just a curmudgeon?

Then I took my mother car shopping. It was while cooling our heels for hours waiting for the contract to show up that I realized why I absolutely despise the new, trendy marathon mediations. It’s because the employee is just like a car buyer. The employee is either alone or with their one lawyer. The other side is there with a lawyer, an HR rep, maybe a couple other folks. Management is the car dealer. The mediator in the marathon is the salesman, trying to get the sale done. The marathon sale is a pretty nasty sales technique, used by car dealers for years successfully, and for one reason – to get the upper hand with the consumer.

Here’s why I am going to continue to object to mediations that go beyond 3 – 4 hours:

Exhaustion: Just like the car buyer, the marathon process wears the employee down. They get careless, restless. Ready to take anything just to get out of there. They maybe have one lawyer, who is also tired. Management has an entire firm, just waiting by the phone and their computers. Possibly an insurance adjuster too. They can have multiple eyes on draft agreements to catch errors, even at midnight. Employees and their lawyers don’t have that kind of backup. There is absolutely nothing beneficial to employees that can happen after 6 or 8 or 12 hours of mediation in one day. It’s best to break it up into smaller sessions so everyone is refreshed and thinking clearly. I even wonder – is a mediator who allows a session to go that long meeting their ethical obligations to the employee? Don’t they have a duty to make sure the parties are capable of clear thinking?

Abuse: Marathon mediations have an incredible ability to abuse the employee through time wasted, trickling out one by one all the reasons the employee sucked and deserved to be fired. They become shell-shocked, even depressed. They’re already tired. The doubt creeps in.

Expense: Most mediations are borne half by the employee and half by the employer. At several hundred dollars an hour, the employer can make an already-poor former employee shell out dollars they can’t afford with no intention of ever offering anything. If there’s no offer after an hour, something is wrong in my opinion.

Here’s how the marathon mediation starts. The employee gives an opening that lasts about five minutes. The mediator asks lots of questions. Lots. Of. Questions. This, despite getting a detailed position statement ahead of time. Then the employer goes, and speaks for half an hour. More questions.

Then comes the caucus. The mediator spends an hour with the employer side, then comes back without an offer. He wants to go over some facts instead. He’d like to spend an hour or so with us, then go back to the employer. That’s when I’m certain the mediation is going to be a marathon.

Here’s how I stop it from being a marathon. I ask if there’s an offer on the table, and he looks at me funny. I say that, unless I have an offer over a specific amount in the next 30 minutes, he can call it an impasse. The mediator acts like I’m being the bad guy. But because I’m not exhausted, I’m not easily swayed. If, after an hour and a half, there’s no offer (and by an offer I don’t mean $500 or even $5000), it’s time to go. Any mediator worth their salt can get an offer from management in an hour and a half.

I place a firm time limit on the mediation. In my case, I have a pretty immovable time deadline to pick the kids up from school. But it can be anything – a meeting scheduled afterwards, dinner plans, anything that keeps you from being persuaded to lapse into the marathon. Sure, if we’re almost settled and I just need a few minutes, I can usually make arrangements to stay a bit later, but if we aren’t close, then at the deadline we need to impasse or continue to another time.

Another thing I like to do is try to start negotiating even before the mediation. I like to see how close we can get before mediation so we’re not starting from scratch. Then we can tell the mediator where we left off. If we impassed before mediation, the ball is almost always in management’s court, since I always, always make a counter to any offer I’ve received. That way, the mediator can start with management. I don’t understand why some management-side attorneys don’t want to talk before the mediation when they aren’t paying someone by the hour to talk to me. But most will gladly talk beforehand.

From now on, I’m going to tell the mediator right up front my time limit for the mediation. I’m going to tell them why. I’ll even tell them about car dealer tactics if I have to. If we can’t resolve it in that amount of time, then we can break and reconvene another day. Just like in the olden times.

So, do you agree with me, employee-side lawyers? Are marathon mediations bad for your clients? What about management-side? Do they actually benefit anyone but the lawyers and mediator? Are there any mediators out there who still limit mediations to no more than 3 – 4 hour sessions? If you think I’m wrong, I’d love to hear that too.

4 comments:

  1. As an employer-side lawyer (long time in private practice, now in house) I am pretty fascinated by this post, not so much because I disagree about the length of time issues (I would prefer them to be shorter too) but because your summation of the typical mediation experience is so very contrary to my general experience. In all the dozens upon dozens of mediations I've attended, only once have I ever had a mediator who insisted upon a joint session to start. I found it to be a total waste of time and actually made the parties more angry and fixed in their positions. It certainly didn't get the job done. I've also never had a mediation where the mediator talked to the employer first and sought an offer first. I would never give an offer first without hearing a demand (even if there was one in the complaint, because I'd almost never consider that $x million demand in the complaint to be realistic or worthy of counter. I do agree, however, that I'd much prefer to engage in real negotiation before the mediation begins).

    Typically, in my experience, the mediator spends most of the morning with the employee and spends a fraction of the remaining time with the employer, because the employer has typically made a realistic evaluation of the case and the mediator has to spend her or his time with the plaintiff to get him or her our of the stratosphere. If that's what it takes to get the case resolved, I'll suffer through sitting an entire day.

    One last thought...
    I typically represented large corporations (and now work for one) that have sophisticated HR and legal departments who (including myself) are typically good, liberal people who believe strongly in our discrimination laws and would never ever condone or allow employment actions to be taken for the reasons that are frequently levied against those companies. I recognize in that regard that I likely have a somewhat skewed sample, but I would say easily in over 90% of the cases I've defended there is no truth to the plaintiff's claims whatsoever, even if I can't objectively prove it. So even assuming that the long mediation could weigh upon and wear down the plaintiff more than the employer, I'd generally consider that at most a fair trade-off given the often justifiable and palpable anger the employer has for having been forced into this expensive situation by an employee who more often than not was terrible at his or her job and refuses to accept responsibility for it so sues and tries to make someone else pay for their own incompetence or egregiously bad behavior.

    -M

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    1. Thanks for your thoughts Marc. I suspect that mediations are a little different depending on what part of the country you're in. Here, they almost always start with a joint session, which I prefer to keep brief for the very reason you mention. As to seeking an offer from the employer first, that happens in my mediations because I've (almost) always reached out to the employer and they have an offer from us in hand at the time of mediation. So the ball is in the employer's court in my cases most of the time.

      I'm a little concerned with the attitude you express that 90% of the cases brought are frivolous. That's an attitude that I go up against all the time. I would hope that lawyers who know me also know that I pre-screen cases pretty carefully and only take those I believe are meritorious. What I find is that people mostly don't like to be in the legal system, and that the employees I see usually are putting themselves out there because they feel strongly that they need to right a wrong. Most people find it very hard to reach out to a lawyer, and even more difficult to decide to sue someone. They tend not to do it lightly.

      If HR goes into the process of dealing with a complaint assuming that 90% of the time it's made-up, I think that skews the process. I think it may explain why so many people face retaliation after they complain - the assumption that they are liars and trouble-makers, as opposed to assuming that they are brave people trying to reach out for help to address a terrible situation. If HR addressed internal complaints with a better attitude, they might not see my colleagues and me so much.

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  2. Donna -- Didn't think to check back to see if you'd responded, so I'm just seeing your comments now. A few friendly thoughts in response.

    First, re: screening potential claims, I suspect you are not most plaintiff's lawyers. There are a couple of firms here that I know only take decent cases, or fold quickly when they realize they have no case. I much prefer to work against those firms, but they are, sadly, the vast minority.

    Second, again re: screening, remember that the employer screens too. If a case/complaint/claim looks bad and the employer is smart/good, it will resolve it fast and fairly. If there's even a whiff of retaliation or potentially retaliatory motive, HR or I will act swiftly to reinstate or resolve.

    Third, my 90% comment related to cases I've personally worked; not cases generally. I'd agree the number generally is, in fact, lower.

    Fourth, my HR team and most I've worked with certainly do not go into their job believing 90% of complaints are made up. They are objective about it. So objective, in fact, that to avoid litigation they and I will often bend over backward so far for employees who are terrible at their jobs that we may make questionable business decisions simply to avoid a claim that might look good, but is in fact bad.

    Fifth, even when HR does address internal complaints with the attitude you would want them to (and I believe many in fact do), we still see you and your colleagues more often than deserved. If employers all of a sudden became perfect--I know, ha ha--the employee-side lawyers still need to eat.

    Sixth and last, a large percentage of the protected activity I see is not in fact "brave people trying to reach out for help to address a terrible situation." I have mad respect for the employee who raises concerns in a vacuum. However, all too often the protected complaint comes right on the heels of the employer's negative performance evaluation/PIP/written warning of the employee. Legitimate or not, the effect is that the employee can avoid responsibility and protect him or herself (at least for a while) from possible performance-based termination. Cynical for a liberal, I know. But very very true.

    -M

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  3. Marc,

    Yikes!

    I am absolutely appalled by your attitude.

    Your arrogance and self admitted "Third, my 90% comment related to cases I've personally worked; not cases generally. I'd agree the number generally is, in fact, lower." speaks volumes about the bias you carry into ALL "negotiations". Ironically you sound very prejudice against employees and I am stunned at your nasty view of how you spend your work days and the people you interact with. Yowsa.

    I have a few things to say, and although I don’t think you’ll “get it” I will proceed anyway. I am going to guess that your reaction will be defensive, that you are allergic to the words "Mea Culpa" & “Touche”, and have a hard time admitting defeat or that you are wrong in general. If I were a company, you are the exact person I'd hire to help me shoot down those dumb employees who think they can make things up and get away with it.

    It is not surprising that you have gravitated towards the employer side and spend your days defending them against 90% made up cases.

    A quick scan of HR sites (especially the comments sections) clearly show that HR admits their job is to "pretend" to be on the employees side, but they’re really just trying to protect the company. You may want to check out the website “Evil HR Lady". It is very telling. HR has a very poor reputation among employees the country over for very good reasons. I personally know HR people who openly acknowledge that their job is to "hear people bitch all day" and have no intention of ever taking them seriously. I've even had some come right out and say they will NOT do anything about the employee's complaints and that is par for their course.

    I would be extremely curious to know the statistics at your company in terms of how often HR truly takes employees seriously and reprimands supervisors. If you’re not a part of the solution, then you are a part of the problem. When companies ignore problems with their managers, they just enable abuses to continue and it makes the Company liable to some of the lawsuits we see in the news. If you truly think that 90% of reports are made up, I can only imagine how much poor behavior your supervisors get away with. From what you're saying and from your company’s statistics that HR ultimately sides with the employer time and time again, your claim that they enter into things objectively holds no water. Excellent example of “confirmation bias” PLUS a paycheck! They may actually have convinced themselves they are being objective and fair, but who would bite the hand that feeds them? I sure as heck wouldn’t!

    I am not sure I'd call you cynical as much as prejudice, hostile, burned out and sorry to say, you make ALL attorneys look bad. Yes, I said ALL. You are a great example of why juries award plaintiffs such high dollar amounts in punitive damages.

    *Sadly shakes head*

    P.S. As an aside; You are aware that people with Type A personalities are much more likely to get heart attacks and strokes? As a licensed therapist I would also add that they are far more likely to get divorced and struggle in their relationships. **Please proceed with caution.

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