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.

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