In this my last post of 2016, I share a tale of two wrongful dismissal mediations conducted weeks’ apart. While both ended in settlement, the road to resolution was very different. In one, the mediation was conducted completely in caucus. In the second, we started and ended the mediation with a joint session.
While study results point to the value of the joint session, mediation is not a one size fits all proposition. Ultimately, the needs and comfort level of the participants should guide the mediation process.
LET THE NEEDS LEAD
In the first mediation, two factors – timing and the parties’ needs – led me to the conclusion that a joint session would hinder rather than help the negotiation process.
I generally like to introduce the mediation process in a joint session. Even those that are resistant to a joint session are amenable to my introduction, recognizing its efficiency and value in establishing a collaborative tone and purpose. It’s during this opening session that I outline my role, the unique opportunity for self-determination that mediation presents and the ground rules for discussion (notably, confidentiality). That portion of the session concludes with the signing of the Agreement to Mediate.
Unfortunately, on this day the employee (let’s call him “Jim”) arrived thirty minutes late. As we awaited Jim’s arrival, I took stock of the situation. Having worked with the employer’s counsel previously, I knew he was not a proponent of the joint session. As well, the employer (we’ll call him “Bob”) was becoming increasingly agitated about Jim’s tardiness; if Bob had any inclination to sit through my introduction in the Jim’s presence, his patience was wearing thin with each passing minute. Both Bob and his counsel were anxious to use the waiting time productively. After consulting Jim’s counsel (who was also in waiting mode), I delivered my introduction privately to Bob and his counsel.
The waiting time had been used productively to introduce the mediation process and to allow Bob to do some needed venting regarding his reasons for terminating Jim. Just as importantly, it proved to be an effective means of deflecting the Bob’s attention away from the Jim’s lateness and refocusing him on the purpose of the day and the issues to be discussed.
When the Jim arrived, I caucused with him and his counsel to review the process. He offered a sincere apology for his lateness, which I subsequently conveyed to Bob and his counsel. In caucus, Jim shared concerns about how he was terminated. I asked him whether he’d value an opportunity to share his feelings with Bob. Jim was clear, he had no interest in addressing the Bob face-to-face.
I will confess that despite the parties’ resistance, whispers of “joint session” wafted in my ears. Perhaps, I thought optimistically, a joint session would help purge and address underlying process and psychological needs that each party had shared in caucus regarding the termination, leading to a more satisfying outcome. While this may have been the right call on another occasion where, for example, the parties had expressed some interest in meeting or there was the potential for an ongoing relationship, it wasn’t the case here. The late start combined with the parties’ clear desire to avoid direct dialogue convinced me that, despite what I thought might be best for them, the parties’ needs would be better served without a joint session.
FRIENDS IN THE END
The second mediation took place two weeks later. In reviewing each party’s mediation brief in preparation, I learned that they had worked together for 20 years in a small community and had enjoyed a close friendship. Their wives had also shared a personal relationship. The two families had grown together, sharing milestone events. People in the community had been gossiping about the dispute. There was a convergence of strong emotions (including anger, resentment and hurt feelings) and a damaged friendship . I began thinking about how a joint session might help to restore elements of a relationship and lead us to settlement.
I arrived at the mediation early and invited counsel to a private meeting. I shared with them the impressions I had gleaned from the parties’ briefs. Counsel were comfortable with me doing my introduction in a joint session, subject to client approval. But, they preferred to dispense with opening statements, fearing they might harden positions. They were also comfortable with me using the joint session to seek clarification on key information (including the value of the plaintiff’s compensation package and his efforts to mitigate by seeking alternative employment).
Counsel conferred with their clients and gave me the thumbs-up for my process plans. But, before delivering my introduction in joint session, I took a few minutes to meet separately with each party, together with their respective spouse and counsel. I explained how I planned to use the joint session. With each group, I detected pangs of uncertainty about the mediation process and concern about the awkwardness of having to sit across the table from estranged friends. However, the knowledge that each side shared this reticence helped to put everyone at ease. I could also sense a strong bond between these families buried beneath the conflict and a mutual desire to put this event behind them.
When we got together for the joint session, the parties and their spouses greeted each other cautiously but warmly. A good start! I delivered my introduction, clarified a few factual discrepancies and invited questions and comments. There was an awkward silence before the employer (we’ll call him “Alan”) remarked that he “appreciated the opportunity for the meeting and was hopeful that a resolution could be achieved so everyone could move forward.” The employee (we’ll call him “Bert”) and his wife nodded approvingly; and, Bert responded that he was looking forward to “putting this all behind him.” While the exchange could be construed as innocuous, I believe it helped set a positive tone and pave the way for a productive mediation.
After five hours of mediation, we emerged with signed Minutes of Settlement. As we prepared to say our goodbyes, I encouraged the parties to exchange handshakes. What I witnessed next was a first for me in twenty years of mediating. The parties and their spouses exchanged hugs! There was also a misty eye or two. It was a special mediation moment!
There is no process template for a successful mediation. A skillful mediator possesses the skills, tact and experience to guide a process that is best suited to the participants’ needs and comfort level.
In reflecting on these two success stories, careful forethought and preparation went into deciding whether to use a joint session and, in the case of the second mediation, how to best use it.
While I value the use of the joint session, it’s not always the best fit. Its appropriateness will depend on several factors including the nature of the relationship between the parties (length, history and future prospects), the value of hearing directly from a party to assess credibility and how that person might perform as a witness at trial, and information exchange practicalities (for example, the value of exchanging large amounts of data or building consensus in real-time). Whether carried out through joint or caucus sessions, or a combination of the two, the objective of any mediation process should be to ensure it addresses the unique needs of the participants.