As I prepare my Mediation Workshop for the upcoming American Society of Trial Consultants Conference (June 17-20), I have been floating in a dispute resolution state of mind. Then, I came across this story...
Eversheds, one of England’s largest law firms, recently found themselves in quite a pickle. For financial reasons, the firm needed to lay off one of two redundant Associates at their Leeds office (one a bird, the other a bloke). As experienced barristers, the higher-ups at Eversheds knew a lawsuit would be likely if they chose to sack the female employee who was actively on maternity leave (Ms. Angela Reinholz). So, they created an “unbiased” rating system and ended up dismissing the “lower scoring” male Associate instead (Mr. John de Belin). Crisis averted, time for tea. Or, was it?
In a classic case of “damned if you do, damned if you don’t,” Mr. de Belin sued Eversheds for choosing to terminate him because he “was not on maternity leave.” With further investigation, it became clear that Ms. Reinholz (the new Mum) had been given “generous marks” on certain scoring measurements that allowed her to edge out Mr. de Belin by half a point in the Eversheds Associate Assessment. Not surprisingly, Mr. de Belin was awarded £123,000.
There are many crazy lawsuit stories out there:
Musician sued for copyright infringement on silence.
Student sues teacher for being woken up too abruptly during class.
Woman sues police dog for intention to bit. (Seriously, she sued the dog.)
However, this pregnancy discrimination case is fascinating to me because it is both bizarre and seems like a prime candidate for a mediated resolution. The way I see it, there were four “inside the box” options:
1. Lay off the woman on maternity leave and likely encounter a lawsuit.
2. Lay off the man who was not on maternity leave and subsequently encounter a lawsuit.
3. Keep both people (who were in redundant positions), lose money, and avoid a lawsuit.
4. Lay off both people and hire a new person. Thus, avoiding a discrimination lawsuit, but potentially finding a wrongful termination lawsuit and losing money on training the new employee.
Truth be told, I don’t know what courses of action were considered or proposed and what potential barriers existed. Despite this, I thought of a flurry of potential “outside the box” mediated cures for Associate redundancy that are all likely cheaper than the costs of a lawsuit defense and subsequent damages award:
· Offer to re-task one of them to a different area of the practice. (Many people like shifting gears.)
· Offer a transfer to one of the 47 other Eversheds offices where they wouldn’t be redundant. (Many people want to live abroad.)
· Promote one. (If they were worth designing a fancy test for, they were worth keeping.)
· Offer to help them get a job at another firm before the lay off. (People know people.)
(For more on finding alternatives to money awards, see Getting to Yes, a.k.a. the Negotiators’ Bible.)
Many attorneys hate the idea of mediation. This stems from a variety of reasons, but I think that the most common complaint is the inaccurate belief that mediation is a waste of time and rarely works. While it is true that many cases do not find settlement agreements on the day of mediation, it is also true that much of the groundwork for an eventual settlement (which may arrive weeks or months later) is established through formalized negotiations.
It is easy to get trapped in a battle of numbers. This can happen to both clients and attorneys. The benefit of mediation is not simply to demonstrate case strengths and fight over dollar figures, but also to create an environment where “outside the box” alternatives are floated in conjunction with monetary settlements. As a former mediator, I have seen huge shifts in dollar values in exchange for such items as: A favorable joint-press release, lifetime access to a beach, and even a simple “I’m sorry.”
Blogger: Matt McCusker
