Speaker 1: Today we're going to talk about what are the biggest mistakes at mediation. I think the first step in analyzing the biggest mistakes at mediation is explaining what exactly happens at a mediation. We get this call all the time from clients who are saying, look, I got a mediation scheduled, or Mr. Fisher, you recommended mediation, or someone else did, or a judge did. What happens at mediation? Meaning, I know we're trying to get to a settlement, but what's the process? I show up to a particular place, and what? Okay, so the process goes like this. There are four kinds of mediations. There are mediations with judges. There are mediations with court-appointed lawyers. There are mediations with private mediators. Some of these people are lawyers. Some of them are not. And finally, there are mediations by administrative bodies, like the Equal Employment Opportunity Commission, things like that. So typically what will happen before the mediation starts is whoever is the mediator is going to contact each of the sides, and is going to ask someone from each side to present the case to the mediator. A lot of times this is done by letter, where the lawyer for the plaintiff has to write a whole story about the case, about what are the claims, what are the key facts, how much has been spent on litigation already, impediments to settlement, what will help get the case settled, so on and so forth. The mediator will then read each of the statements, and the mediator may look at some court documents for the mediation, such as the federal complaint that's filed, or in New York City there's something called, or in New York State there's something called the Bill of Particulars, which has a listing of all of the key facts that explain the pleadings, or interrogatory responses that we have in the federal system, or in the states of Maryland, and in the District of Columbia. And through that knowledge, the mediator gets a sense of what the case is about, whether it can settle, and for how much. During that process, there will be a formal meeting between the mediator, the attorneys for the parties, and the parties. The EEOC, by the way, is now doing these by Zoom, or Skype for Business, because there were issues with Zoom being hacked, but this does not necessarily have to be done in person, and it's not always better to do these in person. At the mediation, the parties meet, they sit in a room, or on a video screen, and there is generally a document that's passed out for confidentiality, which means that anything that is said at a mediation cannot be used in the case one way or the other. Now, that doesn't mean that if you hear something at mediation, you can't then try to get discovery on that fact, or you can't take a deposition covering that material, you certainly can, but no one can say, you said at a mediation, Jim crossed the light, and the light was red when he crossed the light, and now today in court, you're saying it was green, that's a contradiction. No, the mediation statement is inadmissible evidence. After that document is signed, generally each side will present their case again to the mediator, they will explain the best parts of the case, and the plaintiff will issue a settlement demand, the plaintiff will say something like, we are looking for, we are demanding $250,000 to settle this case, terrific. The defense lawyer will do the same thing, will go through his side of the case, explain why the company or the organization is not liable, and will put forth some lowball counteroffer, if at all, at this group meeting. Following the group meeting, the parties will caucus, they will break up into different rooms, and the mediator will meet privately with each of the sides, trying to get the plaintiff to reduce the demand, and trying to get the defendant to raise the offer, until there's a meeting of the minds, and each of the sides agrees on a particular outcome of the mediation. The settlement is whatever it is in money, and there might be non-monetary settlement terms also, such as a resignation, or a letter of recommendation. Then finally, when all that's agreed to, the good mediators will have a document already there for each of the parties to sign, that these are the material terms of the agreement. The defendant may then ask the plaintiff later to sign a release. Technically, under contract law, the plaintiff really doesn't have to sign that, and I've had judges say that, and that's always been my position, but it's customary that the plaintiff signs the release anyway, and at the end of the day, there'll be a payment schedule, and that will end the case. So that's the process. Now let's talk about the three or four biggest mistakes that clients make at mediation, and not just at the mediation, but even before the mediation. The first one is not understanding that the mediation is a voluntary process. Both sides have to agree to go to the mediation, and both sides have to agree to the settlement. This is different than an arbitration, where a third party, an arbitrator, decides the merits of the case, and either rewards the plaintiff, damages, or doesn't. This is non-binding. So at any time, each of the parties can say, you know what, I don't like the way this mediation is going, I think the offer here is really, really too low, I don't want to take it, I've just changed my mind, and I'm going to leave. And that happens a lot throughout the United States. Many, many mediations do not settle, and the plaintiff has to understand that this is not binding, and this is not a third party deciding the case. And the plaintiff cannot force the defendant to accept a particular number at mediation. The deal, the settlement deal, has to make sense for both sides to agree to this. The second big mistake that clients make is failing to appreciate that the settlements in almost all cases are global. Now what does that mean? Let's say you retain an attorney for a particular claim against a federal agency. I was sexually harassed, and it went on for a long period of time, and I lost work, and I suffered damages, and it was terrible. And oh, by the way, there's another case here that I brought, and I didn't tell my attorney about it, but I got a review last year that I really didn't like, and it was unfair, and it was a product of my gender or some other protected basis, and you show up to mediation. If you're expecting that the only case that's going to settle is the one that you are there for, you are wrong. That is not going to happen. The government has always maintained a policy over the last 20 years that I've been in this field where every settlement has to be global. It has to include everything, every single case you have brought in the past. It cannot include waiving future rights. No one can make you say, I agree for this amount of money that I will never sue this employer again. The employer cannot make an employee do that. Any such agreement will not be upheld in court. But these cases, employment law, also negligence, tort cases, whatever, the company, the organization is not going to pay the plaintiff a certain amount of money and continue to litigate the case. It's just not going to happen. So therefore, when you have an attorney at your mediation, you have to tell your attorney all of the cases that you have brought against this company or this agency. That's a huge one. The third and fourth mistakes kind of sort of go together, and they start with not having a lawyer. Huge mistake. How do you know that whatever deal you've agreed to is good? How do you know that? The mediator will say over and over, I'm not here to give legal advice, and a lot of these mediators are not even lawyers, which to me is a problem to begin with because a lot of the mediation, the mediator will discuss the merits of the case, why it makes sense to mediate. Now, this is really true with the Maryland Commission of Civil Rights, whose program of mediation involves a lot of non-attorneys who act as mediators. The times that I've done it, when the mediator who's not a lawyer is giving advice to my client about why this deal makes sense, I've always asked, but sir, you're not a lawyer. How do you know that? How do you know that this case isn't worth a half a million dollars? How do you know the vicarious theories of liability? You don't. You don't know all the legal issues involved, which is why generally we shy away from those and we bring those to the EEOC instead, which you can do, and the EEOC mediations I think are far better because they're done with mediators who are attorneys. So you have to understand the basic factors in settlement. You have to understand the theory of your case. You have to understand similar cases, what's happened with them, how much juries have awarded, how much judges have awarded. You have to have that fundamental understanding and you do need a lawyer for that. The mediator is not going to, he's not your lawyer. He's not, he can't get sued for malpractice. He can't get sued for giving you the wrong advice. You need legal advice, legal advice on should I settle this case and for how much is strictly a legal matter for an attorney. Another mistake, okay, is you go through the mediation, you've listened to your attorney's advice, the hulsh bang, and then you say, wow, you know, I want to call my spouse and see what he thinks or see what she thinks. Okay. Now that's a wonderful marriage type of activity that will build strong marriages. That's a nice thing to do. Okay. From a mediation point of view, it's terrible because the spouse hasn't been there at the mediation for the last four hours. So the spouse hasn't heard all of the arguments for and against settling or not settling this case. Now, if you want to involve your spouse, many mediators and many judges will allow you to bring your spouse to the mediation and the spouse can hear all the same things that you hear and make the judgment with you. And that's the much better approach than calling someone, calling your spouse just at the very end and discussing maybe one or two details about the mediation. Then with the attorney, the other mistake that I think clients make is finally everybody gets to a number. Everybody says, whatever that number is, $75,000. That's great. Okay. We're about to sign the document, terrific. And the plaintiff asks, hey, and I get my lawyer fees too, right? No, you don't. Okay. It's one number mediation. When your lawyer makes a demand, the lawyer is including everything in that number. Everything from doctor bills to lawyer fees, to the costs of filing the case, to the deposition costs. It's one number. Okay. Nobody on the other side of that mediation is going to listen to you, shell out a whole bunch of money or agree to, and then say, oh, and by the way, there are these other six other payments that I have to get. It's understanding that it's one number and make sure your lawyer goes through all of this with you to understand the basic fundamentals of mediation. If you avoid these mistakes in mediation, you will have a far better chance of success and walking away in a satisfactory manner at your mediation than you otherwise would have. Call our office. We can help you.