Introduction

In recent years, mediation of employment discrimination claims, including sexual harassment, has gained increasing acceptance. Volatile jury verdicts generally, and the $7.1 million Weeks v. Baker McKenzie verdict specifically, have served to focus attention on this area, and on mediation as an approach to resolving sexual harassment claims. In this article I will address the increasing utilization of mediation at an early stage in the process of litigating a sexual harassment claim: either before a complaint is served or in the very early stages of discovery.

Best Opportunity To Settle

The decision when to initiate mediation is an important one which provides litigation counsel with an early opportunity to exercise his or her skill and judgment to significantly affect the course of the case. There is no hard rule for deciding when is the best time for mediation. The key question is not whether the parties have all of the information necessary for trial, but whether the parties essential to a negotiated resolution have been identified and can be brought to the negotiating table and whether the information necessary to evaluate settlement options is available.

Employment counsel are aware that often one of the best opportunities to resolve these cases is near their inception; before patience with negotiated approaches has worn thin, before litigation expenses have assumed significant proportions, and before litigation posturing has taken its toll. If early settlement is achieved, enormous economies can be realized. For example, in the Weeks v. Baker McKenzie matter, plaintiff's counsel have asked the court to triple their $1.1 million joint bill, and the defense is estimated to have paid out as much as $2.2 million in lawyer fees, experts and other costs.

Despite the obvious logic of early settlement discussions, it is frequently difficult for trial counsel because of their role as advocate to directly undertake and successfully complete such negotiations within a short time frame. Initially, this may be due to concern that to pursue settlement negotiations might send the wrong signal to the other side. Later, if this hurdle is overcome, often the length of time required for such negotiations is simply unrealistic, i.e. too long, given the countervailing needs of the parties to vigorously pursue other litigation procedures such as depositions, interrogatories, document productions, as well as complete internal and external (e.g. EEOC) investigation(s). Mediated negotiations provide a useful tool for overcoming both of these impediments to early resolution.

Mediator As Catalyst

Although an obvious point for seasoned litigation counsel, it bears mention that both of the above obstacles result from certain basic conventions of negotiation. In accordance with these, each side presumes it must demand more than it wants in order to obtain what it wants, and that too quick an adjustment in its position risks signaling a lack of resolve to the other side(s). Thus, all sides assume that in order to win at this zero-sum negotiation they must demand the most, move the least, and be the slowest to give ground. Regardless of individual differences in style and manner, one thing is clear with this type of negotiation; absent some external influence, it is guaranteed to take a long time. Hence, in order to shorten the time frame for the negotiation (and thereby produce early settlement), an outside catalyst is required; enter the mediator.

First, the mediator can make an efficient assessment of how far apart the parties are. Since he is not subject to the same negotiating constraints as the parties, he can meet privately with each side and confidentially discuss each side's settlement position. The mediator may not be able to restore trust between the parties, but if each party can trust and communicate freely with the him (or her), a realistic evaluation of settlement options can nevertheless occur. Without violating confidences, the mediator can help the parties find out how far apart they really are; and if and where a settlement can be struck.

Second, client relations can be preserved while seriously pursuing every possible option for a negotiated resolution. No matter how good counsel believes client control to be in a given case, there are limits to how far counsel can go in being an advocate for a realistic settlement without jeopardizing the client's faith in him or her as their advocate and champion for trial. Since sexual harassment is difficult to pinpoint and juries are left to interpret and apply ambiguous legal definitions, settlement evaluation is especially difficult in these cases. In these circumstances, the mediator can assume the burden of settlement advocate. When a client feels both strongly and unrealistically about whether or how a case should be settled, the mediator, as devil's advocate, can help the client evaluate the weaknesses in a case and the risks and costs of litigation - even to the extent of telling a client bluntly that his expectations are unrealistic or that a trier of fact may find his factual contentions incredible. Clients can see firsthand the complexities which exist in the case, and which will necessitate substantial investment in discovery if the case is not resolved. In summary, all sides can make a competent, balanced and rapid assessment of the case, without risk to their litigation strategy.

Finally, several other points bear mention. First, because of the emotional content of these cases, mediation can be particularly effective in providing clients with a forum in which to genuinely express their experience. Having had such an opportunity, it is truly remarkable the progress that can be made toward resolution. Second, because mediation is a risk-free way to explore realistic settlement options, settlement approaches that would be difficult to raise directly can be more effectively pursued through mediated negotiations. Finally, in any mediated negotiation it is ultimately the client's right to say "no" to settlement. A good mediator will respect this right. Compromise and settlement are not always the best outcome. Solomon did not cut the baby: in any given case a party may have compelling reasons for rejecting a particular proposal and pursuing an adjudicated disposition to the litigation, or for revisiting negotiations, albeit at a later time and place.

Conclusion

A major settlement opportunity exists at the outset of the sexual harassment case. Basic negotiating conventions, however, can impede or prolong direct settlement negotiations to the point that this opportunity is lost. By intervening with mediation, the time frame needed for meaningful settlement negotiations can be shortened, often resulting in settlement before substantial litigation costs are incurred and/or relations between the parties sour. In the course of these early settlement negotiations, the mediator can help provide the client with a firsthand chance to see the complexities of the case, the risks posed thereby, and the substantial investment in discovery which will be necessitated if the case is not settled. This approach allows all sides to make a competent, balanced and rapid assessment of the case, without risk to their litigation strategy, at a point in time before litigation costs have assumed significant proportions.