CALL: (877) AMC-4ADR / (877) 262-4237

The Mediator’s Tool Box

By Fred T. Ashley

INTRODUCTION

Employment litigation gives rise to a higher level of emotion and personal rancor between the parties and their respective attorneys than most other areas of litigation. This is especially true where the dispute relates to the termination of an employment relationship, which in many ways can be likened to the break-up of a marriage. Accusations of fault and wrong-doing are generally the cornerstones of each side’s case against the other, and the litigation often comes to be viewed by the clients (if not their attorneys) as a means of achieving vindication. Losing track of the potential risks and benefits of the lawsuit, a plaintiff will often demand a sum of money in settlement that is much greater than he/she can reasonably hope to achieve at trial as a symbolic acknowledgment that he/she was severely mistreated. A defendant, in turn, will frequently seek to avoid paying more than a pittance in settlement to underscore that it acted with complete propriety even though it may be exposed to significant liability.

The mediator’s job is typically to assist the parties in working through the emotional impediments to settlement and to redirect their efforts toward resolving the case based on its settlement value. This requires the use of methods that appeal to both the left and right side of the brain of each participant in the mediation. The better an advocate understands these tools, the better he/she will be in achieving his/her essential goals and objectives in mediation.