When I was a student-at-law I was asked to appear with a client at a court-ordered mediation. The lawsuit involved an employee who had received a handsome payout from his employer for transferring cities. The payout was part of a simple contract – he would receive the money for transferring, but had to pay back half if he quit the company within a specified amount of time. He quit the company a few months later, but refused to pay back what he owed. I represented the employer and attended mediation along with someone from their human resources department. The employee did not have legal counsel, and attended the mediation on his own.
As a young lawyer looking to impress the client, I prepared by researching the decisions in similar cases in Alberta. This hardly seemed necessary as the facts of the matter were rather cut and dry – the employee had reneged on the relocation agreement and owed my client money. Simple. But I printed and highlighted some case law and legislation nonetheless.
When the mediation began, one of the two mediators suggested that the employee speak first, since he did not have a lawyer in the room. He began by explaining how difficult his personal life had been at the time he left the company. His girlfriend had left him and his father had passed away overseas. He had been diagnosed with depression and felt alone and isolated in his new city. Simply put, he was miserable. It sounded awful, and I was sympathetic, but the lawyer in me regarded his story as wholly irrelevant. His difficulties had no effect on the legality of the issue.
But when I attempted to vocalize that position, the mediators stopped me, and asked me to wait. This was infuriating because the employee’s lengthy tale was effectively costing my clients money, namely in the form of my hourly fee.
Nonetheless, they wanted me to wait, and wait I did. We continued to listen as the employee explained that he had difficulty getting along with his supervisor and often felt unheard and powerless in the workplace. He said that he was unable to sell his Calgary home for the amount he had paid. He said he had considered quitting the industry and going back to school. This all seemed irrelevant. As I listened, I made sure not to wear my frustration on my face.
Finally, after nearly two hours, he was done, and it was my turn. I explained that, while my client and I sympathized with everything he had gone through, our position on the case remained unchanged.
As it turned out, that was all that needed to be said.
He agreed to pay, requesting only a monthly payment plan.
It turns out the employee needed to be able to tell that story, and to receive acknowledgement that he had been heard, before he was ready to settle the claim. Once he had purged all his opinions, feelings, and hardships, and been told that he still owed the payment in spite of them, he was prepared to discuss the mechanics of making that happen. The few hours of mediation ended up being money well spent by the client, because the file was concluded that very day. Had I insisted that we get to the legality of the matter sooner, it may have further frustrated the employee and scuttled any opportunity we had to settle that day. The litigation could have been extended by months, or years.
I recount this story to illuminate the power of mediation, even when it appears to be an unnecessary diversion from the legal issue(s). A good mediator takes into account the people at the heart of a dispute. Each mediation is different, because each person is different. The way people react to disputes is different.
This particular employee needed to be heard. That was his barrier to settling the claim. The skilled mediators that day recognized that barrier, and facilitated a resolution. A different person may have needed the nuts and bolts of the legal issue to be made clear, and a skilled mediator would have interpreted that need and facilitated a resolution in a different manner.
No matter who the party in a dispute is (a corporation, charity, or governmental body for example) they are always represented by people. The decisions regarding settlement are made by people. And if the needs of those people are met, then the dispute can be resolved in an effective, efficient, and lasting manner.
A good mediator will identify those needs, facilitate the appropriate discussion, and help the parties reach the resolution best suited to them.