Sunday, October 25, 2009

Do Mediators Do Justice?

I mediated a couple of tough sexual harassment and wage and hour cases this past week. At the end of one, the owner of the company asked me a probing question: "Is there no justice in this Country?" I had to step back and contemplate that one. Our California employment laws are particularly protective of employees. They have the right to rest and meal breaks, regular hours (or paid overtime subject to very specific pay rates) a workplace free of what used to be called "flirtation", particularly by their supervisors, and on it goes. And yet...the result can cost the employer much more than the employee would have earned, based upon penalties, attorneys fees and tort damages. So is it justice to settle a case for that kind of payment even in this tough economy? I maintain that what I do is it's own brand of justice: I help parties reach deals which roughly reflect a careful analysis of what a jury or judge would do, tempered by the ability to pay and the savings of avoiding a trial. Is it fair? Is there justice in this Country? These are hard questions. Sometimes I'm glad I'm not a Judge and don't have to bear the price of justice on my shoulders.

Saturday, October 17, 2009

Duty to Clients or Country?

It is about to happen to me. Next week, I anticipate receipt of a subpoena to testify in Federal Court about a mediation over which I presided 18 months ago. I have already received the Court order telling the parties to request my declaration (which I refused to do.) Here's the deal: U.S. District Court civil rights action. No offers made and the case did not settle before me. 18 months later, the case went to trial and the Plaintiff got a "modest" verdict. The parties are now fighting about attorneys fees. The court seems to be persuaded by the Defense's position that the case could have been settled for the amount of the verdict at the mediation. (But of course, it wasn't!) I discarded my notes a year ago, but have orally communicated with both lawyers that my recollection is that no offer was made. Certainly, the case didn't settle--so what difference does it make? It's a perilous position for the court or the attorney's to take: if you fail to accept a low-ball offer, you may not be able to recover your fees if you do better than that at trial unless it's huge. While up until now I considered the attorneys and their clients to be "my clients", I intend to refuse to testify under the confidentiality protections. I guess I feel a little differently about my "duty to country" in the face of a Subpoena to testify to a Federal Judge about matters I consider to be strictly confidential. I'm left feeling angry that the Court may determine this in ways that contravene the policies favoring mediation through confidential communication. I'm lefting feeling angry that I will have to go through the expense of refusing to comply with a Federal subpoena in order to safeguard this process.