Lawyers rightfully focus on the law and drafting compelling legal arguments. After all, that’s our training and background. That’s a big part of our job. What is the law in this situation? Which side has the better legal arguments? How can we best present our legal arguments to ensure victory?
In the world of mediation, having the best legal arguments is one path to resolution. It’s not the only path, and sometimes, it’s not the best path for your clients. For example, in homeowners’ association cases, an HOA may have the law on their side. The association may have a well drafted set of clear rules that residents are expected to follow, and still find themselves in a costly battle with a resident who has a deeply held set of beliefs about the way he wants to manage his property and run his household. The prize at the end of a winning case could be an expensive legal bill, significant expenditure of time and energy, and a lost opportunity to try to connect and understand the resident’s interest and build community.
In employment cases, employees often want to be heard and have an opportunity to share their position. Maybe in a dispositive motion or at trial, the conclusion will be that the employee did not have enough to meet her burden. Or, perhaps, the result will be that the employer behaved poorly in violation of the law and the employee was wronged. At mediation, parties can be heard, their positions shared resulting in greater understanding of their underlying interests, and significant costs and energies saved. During a workplace investigation, we realized that a Company’s well-meaning Human Resource professional was unaware that there were cultural differences between an African American employee and his Nigerian supervisor resulting in an unintentional misunderstanding between the parties. The misunderstanding started building on itself and ended in a constructive discharge claim. Consider a mediation before running directly to trial and both sides may increase their understanding while resolving their differences.
At mediation, we are looking for a resolution that involves a path forward. Regardless of where the law ultimately may end up drawing the line about which behaviors are actionable or sufficient, there is a lot of progress that can take place in mediation when the parties are heard. There is room to consider what led to hurt feelings and to increase our understanding of others’ positions, which may be impacted by their cultural, religious, or other backgrounds.
Do you have a complaint that needs to be investigated? Mediation Maven is now handling workplace investigations in addition to mediations.
Find out more about my experience at https://www.mediationmaven.com/experience
Email me or call me at 713-857-0909 to discuss an upcoming workplace investigation or with questions.
