Mediate this, sucka!

March 19, 2008 2:57 AM

IMAL Filter: So I am volunteering to go to mediation today. What can/should I do to get the most favorable outcome?

I am an employee-plaintiff in a (not yet certified) class-action case regarding all sorts of violations ranging from meal-breaks to altering time sheets. Of course, getting a class-action certified is tough, but I have ALL sorts of documents, emails, etc that will make it pretty damn easy. REALLY easy.

But before that is done, my attorneys suggested that we may save a lot of time (and the other team may save a lot of attorney hourly fees) if we come to a settlement through mediation.

I looked up the the mediator and the the site; the situation looks pretty straightforward.

I heard it could be an ALL-DAY event, while the mediator is going back and forth between the two physically separated parties. There will be a LOT of downtime, knowing the bastards I'm dealing with. I'll have my wifi going, so I'll be able to mefi all day long.

Has anybody gone through this? Besides the basics of being flexible and patient, does anybody have any tips of what I could do to improve the outcome?

Thanks mefites, I love this site because of you guys.

posted by hal_c_on to law & government (2 answers total)

Maybe not necessary, but basic negotiating stuff:

-When describing the situation, keep the facts and your opinions/feelings separate.

-Stick to the principle, not the position. e.g. You have probably already stated that you want to achieve result X (that's your position). But you want to achieve that result for reasons 1, 2, 3, and 4 (your principles). There are other positions that will satisfy these reasons.
posted by winston at 5:15 AM on March 19, 2008

What winston calls principles I've often also heard called "interests," with the goal of mediation supposedly to get both parties to focus less rigidly upon their positions and more upon their interests, as interests on both sides can be achieved by other scenarios than just the positions. When you are focused upon positions, you are engaging in distributive bargaining, where both sides are focused upon divvying up pieces of the same pie in a zero-sum game. The more one side gets the less the other side gets, leading to both sides digging their heels in to avoid concessions.

By contrast, interest-based negotiation is supposed to result in integrative bargaining, where both sides are working together against the problem that brought them to the mediation, and both work to make the pie as large as possible so that the interests each side has are met.

A standard book in this approach is Fisher & Ury's Getting to Yes (here is a PDF link to the first chapter of the book - I realize your mediation is today, but at 13 pages, it might be worth taking a look at).

When the parties are meeting with the mediator individually, that's called a caucus, and some mediators like to conduct the entire mediation via caucuses with each side, with the mediator the sole conduit of info between the two parties.

The mediator will likely have a policy regarding confidentiality in the caucus- that whatever you say in the caucus he will be free to share with the other side if he feels it would be useful, unless you explicitly say that X piece of information is something that he shouldn't share, and vice versa.

The mediator may also start the mediation session with a spiel re: confidentiality overall, that what info you divulge in the course of the mediation is confidential and won't be discussed outside of the mediation itself, and that any notes he takes during the session are also confidential.

As far as how to prepare yourself mentally, prepare a list of what you want from the other side. Be as specific or as general as you want, and include pie in the sky stuff as well, that may not even have anything to do your specific case. Do you want a change in the company's procedures such that the violations you mention never occur again? Do you want any fired employees reinstated? Do you want a change in the corporate culture that led to the violations? Do you want back pay for altered time sheets? Do you want an apology for X or Y person? Do you want extra money for aggravation? Do you want company sponsored retraining programs?

Then look at your list and see if you can spot any big categories among the items on the list- like redress for past offenses, preventive measures for the future, things that generally show respect and appreciation for the employees - those can be your interests. The more you tie in what you want specifically to the more general stuff, the stronger you are- it makes you seem less capricious and more reasonable (and it is harder to disagree with a reasonable person) and also gives the other side more incentive to think creatively about ways to get your interests met even if it involves something specific you hadn't considered before.

I would also recommend doing a similar process for the other side, to get a better idea of what they are looking for- then you can tailor your suggestions along the lines of something that works for you but also isn't totally inimical to them. Clearly, they want to avoid litigation. Do they also want to avoid bad PR? Do they want to have satisfied employees? Do they want want better relations with the community? Do they want to avoid some sort of state action against them? To the extent that you can put yourself in their shoes, it can lead to some creative solutions.

Good luck today!
posted by that possible maker of pork sausages at 7:55 AM on March 19, 2008 [1 favorite]