Earlier this month, I had the privilege of participating in a weeklong mediation training at Harvard Law Schools’ Program on Negotiation. It is known as one of the best such programs in the country, and I learned why. Five accomplished mediator-instructors and 48 participants, with legal and non-legal backgrounds and from 13 countries, for 9 hours per day. I learned many lessons through the presentations, exercises, and reading that are well worth sharing. There are five that I believe are especially useful in the context of employment disputes.
Lesson #1 — Consider the Value of Joint Mediation Sessions, Alone or in Conjunction with Caucus Sessions
My experience as an advocate in Colorado is that mediators in employment cases usually rely on the caucus form. The neutral meets privately with one side in one room, and then with the other in a different room. The mediator then moves back and forth between them, bearing settlement offers and counteroffers, asking questions, and providing commentary. In certain employment disputes, this “shuttle diplomacy” can be an effective way to help the parties to “get to yes.” The parties may be a combustible combination unless they are separated from one another. Counsel may want to share information with the mediator but not with one another. Consultations with the representative of an employer’s employment practices liability insurance carrier or a co-defendant may be difficult unless they occur out of earshot of the plaintiff. A party’s lawyer may not want his adversary to see how his client reacts to what the mediator says or the offer she provides.
At the conference in Cambridge, however, the instructors, especially legal mediation pioneer Gary Friedman and Harvard Law School Professor Robert Mnoookin, challenged us to bring the parties and their counsel together in one place to mediate disputes. According to this view, joint sessions, unlike caucuses, give each of the parties and counsel the chance to understand directly the other side’s view of the controversy and what is needed to resolve it. They may find common ground as to facts or legal conclusions that, in turn, propels them toward a resolution. For example, meeting in joint session may help parties in a Title VII lawsuit determine what (if any) working conditions would make reinstatement a viable option. Or, in a dispute in which two managers are in a turf batter in their organizations but will have to work together when it ends, empowering them to resolve their dispute in joint session may help create momentum to begin building or rebuilding trust and forging a durable solution to their conflict. A third example is the rare (though not unheard-of) conflict in which an apology by one party can seal the deal end the litigation.
Another alternative is the use of both caucuses and joint sessions at different points during the mediation. For example, even if the parties are averse to being in the same room together during most or all of the mediation, it may be advantageous for their lawyers to meet together at length at the beginning of the mediation. At such a joint session, the mediator can help the lawyers establish a shared set of ground rules. They may be able to limit negotiations to avoid wasting time on matters on which the parties agree in a case (e.g., that front pay will be minimal at best because the employee became re-employed during the litigation) or are unlikely to agree (e.g., whether a defendant that lost a motion for summary judgment will prevail on liability at trial). On the other hand, such discussions in joint session may broaden the scope of negotiations, which may create fertile ground for settlement.
To be sure, joint mediation sessions are not always workable or desirable in resolving employment disputes. But the reflexive choice to rely solely on caucuses may impede rather than facilitate settlement. Conflicting parties, their lawyers, and their mediators should consider carefully whether use of joint sessions, alone or in conjunction with caucuses, are likely to create the value that the parties need to settle their dispute.