After becoming a mediator in 2015, I attended the annual meeting of the ADR section of one of the local county Bar Associations. The keynote speaker said something that instantly got my attention. During the course of their remarks the speaker asserted that there are no lawsuits about money. I was taken aback.
In my nearly 30 years as a litigator, I’d conducted over a dozen bench trials and two jury trials. I’d conducted binding arbitrations and mediated dozens of cases. Money had always seemed like a key factor in all these proceedings. The speaker’s broad assertion left me stunned.
After the meeting concluded I asked the other attendees at my table for their viewpoints on this assertion that no lawsuits are about money. They all agreed with the speaker. They shared with me story after story about lawsuits which were ostensibly about money but which were actually about non-monetary values such as respect, principle and a sense of fairness.
I thought a lot about this. Now, after having served as a mediator for many years, I wouldn’t say that no case is about money. But I am absolutely prepared to say that non- monetary values are central to many disputes – and in some cases these non-monetary values are just as important – or even more important – than money.
I mediate several different kinds of cases. But I find that critical non-monetary plaintiff values abound in employment matters. In many wrongful termination cases an employee has worked hard for many years for an employer. Oftentimes they have given their job a good share of their heart and soul. Many times these employees identify with their jobs. In some situations their employment forms a key part of their identity, or even their self-worth.
If an employee has performed dedicated, heartfelt service for years or decades, then they may feel invested in their workplace, their co-employees and the customers they serve. Even though California employment is an “at-will” employment state, if the termination of such an employee is handled abruptly, roughly or by what may seem like unfair means, the employee can feel unappreciated, disrespected, or even snubbed. An employee’s responses to termination can range from grief to despair to anger and everything in between. Experience shows that when plaintiffs are “SAD” – i.e. Surprised, Angry or Disappointed – they often call a lawyer. In employment cases where an employee feels disrespected or snubbed, they may be looking for recovery of lost wages. But even more importantly they may be looking for their sense of respect to be restored.
When (rightly or wrongly) a terminated employee feels wounded or abused, their lawyer becomes an advocate who will help them “set things right.” Their legal proceedings not only become a way to recover lost income, but may also be the only real avenue in which their grievances will be aired. In many employment mediations it’s imperative that the plaintiff be heard and understood by the mediator. If the plaintiff’s moral/emotional values in a wrongful termination case can be adequately addressed, then a good deal of the hurt may be assuaged. If that happens then the stability and the quiet that accompanies resolution may begin to look more appealing to the plaintiff than the upheaval that accompanies continued litigation. At that point it may be possible to talk more realistically about achievable settlement numbers.
Sometimes the defense focuses on poor actions or decisions by the plaintiff that justify or validate the termination. Such poor choices can have value in softening the monetary demands in the plaintiff’s room. But such bad acts or decisions by the plaintiff must be discussed with skill and care. The challenge is to help the Plaintiff see that a judge or jury may view their termination differently while at the same time helping the Plaintiff feel that they are respected, that justice is being done and that life is (to some degree) fair.
All of these factors are in the grasp of the mediator and the parties when the mediation begins, but whether or not things get to resolution often depends in large part on the emotional tenor in the plaintiff’s room. If the Plaintiff feels wounded or disabused and feels like no resolution of these considerations is being reached then the monetary demands may remain unrealistically high and out of reach of what may be accomplished. A mediator’s skill is rarely put more to the test than it is in quieting the emotional anger, hurt and frustration that often exist when someone feels they’ve been mistreated, disrespected or worse. The challenge in mediating such cases is in finding the achievable balance between money and these highly critical non-monetary values. Mediators who excel at facilitating that balance find they not only enjoy a high rate of success but also find that the parties feel they have been heard, respected and valued.
Robert Jacobs is a neutral with Judicate West. He has litigated cases throughout California for more than 30 years. He serves as mediator and arbitrator in Employment, Business, Real Estate, Construction, Personal Injury and Trust Litigation cases.