effeCtIvemedIatIonInemPLoymentLaWCases labor & Employment law Section
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discrimination cases fall into that category . Sometimes one side is detached emotionally , but we almost always have a plaintiff who is emotionally invested and , frankly , an emotionally invested defendant is not uncommon . So , what can you do to improve the chances of a successful mediation for your client ? Be present and aware .
Lawyers typically walk into mediations comfortably . You know who the players are , and you know what to expect . It is not unusual for all the lawyers ( mediator included ) to shake hands and engage in small talk while they wait for everyone to get there . This level of comfort for the lawyers can translate to a level of discomfort for the clients . While unintentional , it makes them feel like outsiders . Your client wanted to show up as a team with you , but now you seem to be on a team with the other “ suits ” in the room . Be cognizant of this . Prioritize bonding with your client over catching up with your colleagues . Make sure they get introduced to everyone and feel included .
Also , consider your client ’ s point of view . If your client ( whether plaintiff or defendant ) feels they are the victim of discrimination , they likely find it hard to trust anyone — even you and the mediator . Being “ nice ” does not necessarily overcome that . Let them know , in no uncertain terms , that you understand their recalcitrance and that it is okay for them to tell you when they feel unsure or unsafe . Make sure to reinforce the mediator ’ s instructions that they are the decisionmakers in the mediation and that they have the protection of confidentiality . And remember , if your client is in the minority at the mediation , whether by race , gender , disability or other characteristic , their discomfort level can be even higher when discussing their claims or defenses . Acknowledge this , too .
Ultimately , it is important for us all to remember that mediation belongs to the parties and to come to mediation as problem-solvers rather than warriors . n
Author : Mandi Ballard Clay – Miles Mediation & Arbitration
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