I conducted a mediation recently that had all of the ingredients for failure (as discussed in last week’s blog) from the very start. It was a wage and hour case in which the plaintiff claimed, among other things, that she worked long hours for which she was not adequately paid, was not allowed to take meal breaks or rest breaks, and did not receive a pay stub each week itemizing her wages.

While I received a mediation brief from the plaintiff’s attorney, I did not receive one from the employer’s counsel. Thus, going into the mediation, I had only one side of the story which appeared to be a straight forward question of an employee working long hours and not getting paid the amounts required by the statutes.

The first thing that happened is that I noticed when the plaintiff came in, her attorney who was already here, introduced herself implying that this was the first time they were meeting. To me, this indicated the absence of any sort of relationship upon which to build trust. The plaintiff had no reason to trust her attorney whom she had never met before.

The second thing is that I spoke with the defense attorney who gave me a completely different story; plaintiff was an occasional day laborer who worked every so often for defendant and nowhere near the long hours or days she claimed. In fact, defendant’s hours of operation totaled less than the hours plaintiff claimed she worked each week. This completely different story caused me to rethink my approach and strategy very quickly.

The third thing that happened is that when I walked into the room occupied by plaintiff and her attorney, I learned that plaintiff spoke no English and her attorney spoke no Spanish. There was no interpreter present and the only way that either counsel or I could speak with plaintiff was for counsel to call her office on her mobile phone and have one of her staff interpret. (At this moment, I knew this was going nowhere fast but being a persistent soul I hoped for the best and marshaled on.)

Since I could not converse with the plaintiff, I decided to speak to the attorneys to have a discussion of the issues. At that point, I realized that the plaintiff’s attorney was a young attorney appearing with pre-ordained marching orders, having no control over her client or the matter. In response to the version of the facts as laid out by defense counsel, plaintiff’s counsel remained resolute in her position, even when told that plaintiff was claiming to work more hours than the business was open during the week.

Plaintiff’s first demand was scripted; it was the amount demanded in the complaint, as though no frank discussion of the issues or facts had been held. While counsel indicated that she previously spoke with her client about the version proffered by defense counsel, that conversation could not have been meaningful due to the language barrier and the lack of any relationship between them.

Defendant responded with a minimal amount to which plaintiff responded with a still quite high demand, advising that her client denied everything the defendant was saying. It was clear that plaintiff’s counsel, being a young attorney, did not have the healthy skepticism that comes with experience to listen to her client critically and judge for herself whether what plaintiff was saying was credible. Rather, to her thinking, plaintiff was her client and she had to accept what she said without question.

In an effort to try to break the impasse, I suggested a joint session. While defendant and its counsel agreed, plaintiff’s counsel agreed but plaintiff refused. Again, plaintiff’s counsel took the “no” at face value, not seeking to talk to plaintiff privately to find out why and/or try to persuade her to meet jointly.

Rather, plaintiff counsel met with defendant and counsel, and we discussed the issues. Without plaintiff present, there could be no candid discussion. At the conclusion, plaintiff’s counsel realized she had more discovery to do and perhaps the case was not really positioned to settle; the mediation ended.

There are several morals here. First, communicate with your client prior to the mediation so that a relationship of trust can be created. Prepare your client for mediation by discussing the strengths and weaknesses of the case and the various alternatives available. Second, communicate with opposing counsel prior to the mediation and have a frank discussion of the issues so that the mediation is not full of surprises for which there is no time to verify or conduct due diligence. While plaintiff’s counsel indicated that she had been told of the employer’s position beforehand, it appeared that she did not do any investigation other than ask her client who denied it. Third, if there is a language issue, be sure to bring an interpreter to the mediation so that communication in its simplest form can occur. To depend on whoever is available back in the office to interpret is “winging it” which spells disaster.

Fourth, do not simply be a warm body showing up at the mediation. Be prepared to negotiate and have frank discussions with the other party and the mediator as well as with your client. While an attorney is supposed to be a zealous advocate for her client, she is not required to believe everything her client tells her; she must use a critical eye and ear and judge her client’s credibility as that is what a judge and/or jury will be doing. If what her client is saying is not credible, it is better for the client to hear it at mediation within the confines of confidentiality than at a public trial from a judge or jury.

Fifth, be sure the case is ready for mediation. While mediating early is recommended to save time and the expense of litigation, if the parties have not conducted the necessary fact investigation and/or discovery, then it is meaningless as parties will not settle cases when there are too many unknowns existing. In this mediation, the plaintiff’s version of the truth was quite divergent from the defendant’s and nothing had been done to try to corroborate one or the other. Thus, the case could not be settled, because if one believed plaintiff, she was owed quite a lot of money, but if one believed defendant, plaintiff was trying to take advantage of a generous, kind-hearted employer (aka “no good deed goes unpunished”).

I do not know what will happen here… discovery no doubt will indicate which party has the “truth” on its side…..

…. Just something to think about.

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