Denton (not the one in Tameside) but the one in Texas is where we stat the roundup of this week’s mediation news.
And District Judge Martin Hoffman has ordered the parties in a wrongful termination case (for English translation read unfair or wrongful dismissal) to attend mediation.
The city of Denton is itself the employer and the employees are Michael Grim and Jim Maynard, former municipal electricians.
Trying to walk the line between mandatory mediation and keeping the process voluntary is difficult but the judge said that the meeting was mandatory although it would be treated as a non-binding settlement conference if no decision was forthcoming from it. So the mediation remains confidential if nothing occurs but if the parties reach settlement that settlement can be turned not an order.
As obligatory-voluntary options go it’s not a bad one and one with which I wish the courts here would be a bit more pro-active.
And why go to mediation? Because as I am want to say mediation works.
In California for instance nine counties have via mediation agreed a settlement of $415 million for their claims against PG&E arising out of the North Bay fires.
You’ll remember seeing the devastation of the fires in the news and in part the blame was laid at the feet of PG&E’s electrical equipment.
Litigation was already underway and all mediation techniques had been attempted when the mediator was asked to take the step out of formal mediation and toward arbitration int his case and recommend a number, which both sides have now accepted, for settlement of all claims.
In relation to making any recommendation a mediator has to be very clear that it is a last resort, and one in my view you should never make as advising is not the mediator’s job, there are ways of posing questions to both parties which avoid advising, the mediator’s opinion on what is the right result is too close to judgment and that’s not the mediator’s role.
Yes a mediator can review the evidence with the parties, highlight relative strengths and weaknesses and suggesting a settlement figure is fine, if it is suggested clearly as an option for the parties to consider but not to advise on it. In this instance the parties asked and agreed not to hold the mediator accountable for any figure suggested and clearly the mediator had a good idea of what could be acceptable to both parties as once the figure was put forward it was agreed.
Needless to say I think mediators have to tread very carefully even if all parties ask for a recommendation.
Great article about how despite the party thinking they are only a small cog in the machinery they have a big impact on settlement and dispute resolution.
For copyright reasons I won’t put a picture of the precise graphic which Sue Ann Miglino uses but you can read the article and find the graphic yourself, it’s a good article about changing perception of parties and one I fully endorse.
I tend to use on good old reliable images like the runaway train, the mountain and occasionally a bridge to describe the process of mediation but getting the parties to understand their part is made easier by this one image, thanks Sue.
You may have noticed I do like a football (soccer) mediation story when I can get one and with women’s football currently featuring high in the news thanks to the superb work of the England team (even in the face of some unpleasant tactics by opposition players) it’s not surprising to find that there is a related mediation news article.
As the teams engage on the field so in the background 5 US team players and 28 national league players have begun a case for discrimination and equal pay against the US Soccer Federation (USSF).
The sides have now agreed that following the end of the world cup they will enter into mediation to discuss potential options to move forward. No doubt there will be much discussion about what the USSF has previously referred to unequal pay as being “based on differences in the aggregate revenue generated by the different reams and/or any other factor other than sex”.
That stance rather flies in the face of the fact that in the US (unlike the UK women’s leagues) generates more revenue than the men’s (according to the Wall Street Journal).
The difference ($50.8m for the women’s leagues as opposed to $49.9m in the men’s) compares very poorly with the difference in pay. Roughly the women could earn about $5000 per match whereas men could earn $13,000, there are further gaps in pay for playing for the national teams as well ($15,000 for women and $55,000 for men).
In a game worth so much to so many it only seems sensible that mediation is an option taken early in proceedings before (as with most litigation) huge sums of money, time and stress are utiltised when a mediated solution is achievable at an early stage.
The open nature of discussions in mediation whilst remaining confidential allows all sides to engage fully in the process and understand the needs of all involved allowing parties to reach a conclusion which both sides can live with and move on.
There are so many situations which could have been resolved by early intervention of mediation it continues to surprise me the lengths the public (and some lawyers) will go to avoid referral.
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