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Mediation

Non-legal considerations loom large in employment mediations

Peter Israel
Barry B. Fisher

Non-legal concerns often figure prominently in employment mediations, and each party's issues tend to be different, Toronto employment law mediators Barry B. Fisher and Peter Israel tell AdvocateDaily.com.

Whatever is at the heart of the legal dispute between a terminated employee and their former employer, it’s often a less obvious barrier, that has nothing to do with the law, that is standing in the way of settlement, Fisher, principal of Barry Fisher Arbitration & Mediation, says.  

“The issues that come up are very different in the two rooms. For plaintiffs, in broad terms, it’s the emotional aspect that is most important. That’s a factor for defendant employers too, but there are also political considerations,” he says.  

As a result, mediators have to tailor their approach depending on who they’re dealing with, says Israel, founding partner with employment and labour law boutique PI Mediation.

“Always be clear about which side you’re talking to,” he says.

For employees, Fisher says the shock of a firing will often feel like a personal affront, particularly if it comes after a long period of service. That makes it difficult for plaintiffs to approach negotiations with an objective mindset.

“In the plaintiff room, you’ve got anger over the loss of a job or years of harassment,” he says. “Fear — over what the future looks like, and whether they’ll ever work again — is another big one.”

Even worse, sometimes these fears are well-founded:

“You can feel the desire for revenge sometimes,” Fisher adds.

Despite that, he says it’s relatively easy for mediators to handle plaintiff emotions in a way that opens them up to the possibility of settlement, simply by listening closely and offering an opportunity for them to vent.

“These kinds of emotions are to be expected, and are a very natural reaction to this kind of situation,” Fisher says.

Still, Israel says a mediator must also tread a fine line between empathy for a plaintiff and overindulgence, in order to keep the process forward-looking.

“You don’t want it to become an airing of past grievances,” he explains. “I tend to empathize with plaintiffs, but also to undercut it by pointing out that I am not a tool for vengeance and neither is their lawyer.

“You stress that this is about the law and maximizing what they’re rightly entitled to, and how they shouldn’t allow bitterness and frustration, however valid, to get in the way of that,” Israel adds.

It may take some time, but he says plaintiffs typically come around to the idea that the economics of litigation mean they can’t afford to allow their emotions to trump rational decision-making, especially when their own counsel is there to reinforce the idea.

When it comes to employers, Israel says the picture can also be complicated by non-legal factors.

“There’s a political element to it with bigger companies in that they want to hold the line in each case, in order to stop them looking like a patsy for the remaining 10,000 employees,” he says. “They’re sending a message to everyone, not just the plaintiff.”

Still, Fisher says it’s easy to forget that a termination can be emotionally wrenching for employers too, particularly at smaller operations where the business owner may have a strong personal connection to the fired plaintiff.

“The emotion can come from a sense of injustice about what the employee did, or a feeling that they have gone over the top in their pleadings with accusations of bad faith,” he says.  

According to Israel, expressing empathy works well for mediators in these situations.

“It’s sort of the same as for plaintiffs, but in reverse,” he explains. “You show that you understand their feelings, but that it’s not getting them anywhere, and appeal to their skills as a businessperson.”

But it can get more complicated when larger employers are involved, and the human resources professionals sent to deal with the mediation bring their own emotional baggage, Fisher says.

“Because it’s not their money they’re bargaining with, it’s easier for them to stick to what they see as their principles,” he says. “If they harbour an irrational dislike for the plaintiff, it’s harder to get them to see reason.”  

When a hierarchical defendant sends a representative without decision-making power to the mediation, Fisher says he is prepared to exert pressure, based on an assessment of the organization’s politics.

“If an HR manager has been told they can’t settle for more than $50,000, and it looks like $55,000 will work, I might get them to call their boss and let me talk to them,” he says. “I’d probably be terrified if I had to ask my boss too, but as mediators, we don’t have to worry about being fired. It takes the heat off.”

“It’s more work for me, but I find it most effective when I’m the one negotiating in each room,” Israel adds. “You have to be prepared to be tenacious, but it works.”

When the parties are close to arriving at a number for settlement, Fisher says egos can get in the way of splitting the difference.

“It can be the lawyers as much as the parties. Some people just want the last word, so you have to recognize that and deal with it,” he says. “If you can manipulate the situation so that they feel like they’re getting a win, they’re going to come around.”  

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