The barbaric terrorist attacks of September 11 have brought out the courage, patriotism and selflessness in millions of Americans. It will be interesting to see what effect those tragic events will have on litigators and litigants. A few early returns are most promising.
I had an employment mediation scheduled for September 11 in a part of Los Angeles known as Century City, so named because it sits close by the Twentieth Century Fox studio. I’m told that the twin towers—in one of which the mediation was to be held—had been designed by the same architect who designed Manhattan’s World Trade Center.
The morning of September 11, my daughter came into my bedroom on her way out to catch the bus to school and said, “Our country’s been attacked and we’re at war. Can I have lunch money?” I bolted upright in bed and sat transfixed in front of the television, too sad and distracted to apply makeup and other finishing touches for the day’s case.
As the enormity of the tragedy started to sink in, I realized that the mediation would probably be canceled. I was grateful to be spared the need to tear myself away from the broadcast of the constantly-changing situation, and the need to report to an office tower that was (and thankfully remains) one of the tallest for miles around.
At 8:00 a.m., I phoned the law office where the mediation was to take place, but no one was in yet. I kept trying the switchboard until, at 8:45, I realized that no one was going to come in to that office, and possibly into that tower. Relieved, I left messages with counsel requesting that they contact me about rescheduling.
To my surprise, counsel called back within the hour and requested that we proceed with the mediation. One of the attorneys had flown down from San Francisco, and a client had flown in from Ohio. They had to get back the next day so, unaware that they would be stranded in Los Angeles for several days, we thought we had no choice. The twin towers in Century City were inaccessible that day, so we met at a hotel in Century City.
My reading of the briefs indicated that, in a nutshell, plaintiff claimed she had been denied an acquisition bonus that her bosses had promised her once their company—whose spectacular growth she had contributed to from the outset—was sold. Shortly after she complained, she was allegedly threatened with termination. She was claiming age and gender discrimination, as well as breach of implied contract and of the covenant of good faith and fair dealing. She could offer no proof, other than her sister’s statement, that the bonus representation had ever been made.
The defendant acquiring company had excellent defenses. It had not been involved in the decision of her bosses—the sole shareholders in the acquired entity—to give or withhold acquisition bonuses. The documentation available to the defendant indicated that plaintiff had never been considered for, much less promised, an acquisition bonus. Furthermore, very few employees of the acquired company had been given acquisition bonuses, but of those that had, several were close to plaintiff’s age. And there was virtually no evidence of gender discrimination except for a few stray references to her as “Babe.” In short, her case did not look especially promising on paper.
I began the joint session with an acknowledgment of the obvious: we were all in a state of shock, and focusing on the matter at hand would be a challenge. I also noted that the tragedy unfolding before our eyes might, perhaps, give everyone some perspective on the dispute that brought us together.
After the joint session, I shuttled between hotel suites. The side with which I was not meeting, stayed transfixed before the TV set, reporting the latest events when I returned to caucus with them.
It was an extraordinary mediation. The defense was represented by a very experienced attorney from a nationally-known law firm. The plaintiff’s attorney was a sole practitioner less than a half dozen years out of law school. Yet counsel treated one another with courtesy and respect. This is not that so unusual. The first extraordinary element was that the company’s representative, in-house counsel for an entity that had been acquired by an even larger entity, which was part of an even larger entity, was genuinely sympathetic to the plaintiff. Many plaintiffs’ cases are sympathetic, from my neutral perspective, but it is not often, even in mediation, that defense representatives appreciate plaintiffs’ humanity.
Better yet, the negotiations, far from being contentious, took on a downright cooperative tone. Without any prompting from me, the defense representative told the plaintiff that it sounded as if she had gotten a raw deal. Plaintiff acknowledged that the acquiring entity had, too, since it had paid a lot of money to acquire her lying, cheating bosses.
As part of any settlement, plaintiff was told she would have to resign. What would she like to do? Did she want help finding another job? Or help planning for retirement? A farewell party? She was welcome to decide how long she wanted to report to work, or she could stay home from that day onward.
As the sun began to set, the only issue left to resolve was money. With a lot of effort, the parties came very close to agreeing on a settlement figure, but they were still $50,000 apart. We were all in one room now, trying to figure out how to break the deadlock. Not infrequently, plaintiffs hold out as long as they can for an extra five or ten thousand dollars, but realistically, they infrequently do not walk away from a one hundred thousand dollar-plus offer over a $5,000 shortfall.
The negotiations were poised for someone, probably me, to suggest the parties split the difference. The dynamics among the parties and attorneys were so amazing that I remained silent, refraining from shepherding the dispute to its obvious conclusion.
The defense team asked to be excused and stepped into the hallway to caucus. I stayed with the plaintiff. Her attorney looked at me apprehensively. I suspected he and his client would have been delighted if the defense would agree to a 35/15 split–$15,000 extra for the plaintiff–of the $50,000 that separated their positions. Having caucused extensively with the defense, I believe they would have been willing to split the $50,000 if absolutely necessary, but not pay a penny more. Settlement was in the air; the only question was exactly how much of the $50,000 the defense would give up.
And then the most extraordinary thing happened to bring the dispute to resolution. The defense team came back into the room and said to the plaintiff, “Why don’t we split the difference, plus let you stay on the payroll through the end of the calendar year? And you can let us know in a week or two when you’d like to stop coming in.” The value of that quarter-year salary, plus vacation days and health and other benefits that would accrue during that time, brought the plaintiff to a 49/1 split with the defense!
This may sound hokey, but there was a warm glow in the room as the settlement was inked. People had been more than civil. They had made the effort to understand, and they had cared about, each others’ positions and interests. All this while the World Trade Center burned.
A couple of days later, I read that a bitterly-contested, highly personal multi-million dollar Houston attorney fee dispute, in the opening days of a trial scheduled to last a month or more, had settled in the early hours of September 12. Trial counsel simply realized that their clients’ problems paled in comparison to the horrific tragedy being played out on the national stage.
First Published by Bond Dispute Resolution News 8 Volume 17 June 2004“Failing to prepare, is preparing to fail.” Introduction Mediation and conciliation are forms of “assisted decision-making” (ADM) or “assisted...By John Wade
From the Disputing Blog of Karl Bayer, Victoria VanBuren, and Holly Hayes. As discussed in my previous post, Texas House Bill 2256 was signed into law on June 19, 2009....By Holly Hayes