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Employment & Labour, Mediation

The spouse’s role in employment mediation

The best place for a plaintiff’s spouse during employment mediation is at their partner’s side, Toronto employment mediator and arbitrator Barry B. Fisher tells AdvocateDaily.

“These are family decisions, not individual choices,” says Fisher, principal of Barry Fisher Arbitration & Mediation. “In most families, income or lack thereof is a pretty important issue.”

“Often, the spouses don’t show up, and perhaps they think they’re not allowed to,” Fisher says. “I would encourage the plaintiff’s lawyer to advise their clients that the spouse is more than welcome, and it might even be helpful.”

Fisher says he never asks permission to have someone there to support the plaintiff during a mediation process.

“I’ve never had anyone balk beyond one or two questions,” he says. “I take the position that within reason, each side gets to decide who’s in the room.”

It doesn’t have to be a spouse — an adult child, close friend, or someone who can help with translation if there is a language barrier can provide the emotional support a client needs, Fisher says.

“It’s part of self-determination in a mediation,” he says.

Having a support person in the room can smooth the process, Fisher adds. Mediators often only want the “nice spouse” there, one who will encourage a deal.

“I want them whether they’re nice or not,” he says.

When it comes to a domineering or difficult spouse, Fisher's theory is, “I want them in the room even more.” Having someone a phone call away at decision time when the plaintiff wants input slows the process.

“If I’m going to have a problem, I want everyone in the same room, so we can work it out,” Fisher says.

Relationship dynamics and individual temperament affect how spouses behave during mediation. The husband or wife can be the one that leads their partner to accept or reject a settlement.

Fisher meets the plaintiff and their partner for the first time during mediation.

“I have three or four hours and that’s why I spend a fair amount of time in the beginning just bonding and asking questions. You learn things that really matter,” he says.

He encounters distinct personality types among spouses.

The best person from a mediator’s point of view is a helpful spouse who voices an opinion and has resolution as a goal. The plaintiff sometimes feels a need to fight for family, Fisher explains.

“They need permission from the partner to let go,” he says.

The spouse Fisher finds least helpful is not a combative spouse, but one who automatically defers to their partner, won’t voice an opinion and “thinks his or her role is to give no guidance. We all want guidance.”

He likens the mediation process to what he often did as an employment lawyer, telling clients he’d continue to fight for them if they were unhappy with an offer, or supporting the decision if they decided to accept.

“It’s providing the person with support, not giving up and saying, 'Whatever you want,'” Fisher says.

He asks the indecisive spouse to consider what they’d do if they were the one who had been terminated.

“It’s the job of the mediator to turn it around,” Fisher says.

“Timing is important,” says Fisher, who involves the spouse to provide support and input at “crunch time,” when the final offer is made “and I think it’s the best deal he’s going to get that day.”

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