Posted on March 10, 2015 in Alternative Dispute Resolution
A little comedic blog about mediation, if you will:
Imagine George Jetson finally having enough out of Mr. Spacely and vice versa. George, a beloved and devoted employee, but a bit of a goofball, has been fired, again, by Mr. Spacely who says no rehire on this 100th termination unless George agrees to work there in exchange for less money than it takes to fuel up his flying saucer to get to work. What are their options?
Mediation is, more often than not, a much more civilized route to dispute resolution than hiring a team of lawyers, filing lawsuits, waiting months (even years at times) for your day to tell voice your grievance in an open forum and then leave your fate in the hands of either (1) a jury of 12 people who know nothing about you and need to get back to their own job; or (2) leaving your fate to a Judge who, again does not know you and has allotted you as little as 15 minutes to present your side of the case. In either scenario the jury or the Judge will likely not get to hear everything you want to say because it will be "irrelevant, "hearsay" or otherwise inadmissible pursuant to the law.
Many, if not most of the Courts, are requiring that the parties attend mediation to attempt to resolve their dispute prior to a hearing. Why, you ask? Because it works if the parties are can think outside the box (the box containing only what they want and not considering what they should give the other party in exchange.)
In mediation, I will oftentimes pose the question to the party making demands, "Would you do that if the shoe were on the other foot?" or "Give me reasons to tell the other party why this offer is good for them." Sometimes people have never considered that there are almost always two sides to a coin and have tunnel vision only allowing them to see their own needs. A good mediator helps get them out of that box.
Imagine, if you will, a mediation between George Jetson and Mr. Spacely:
George: I need to keep this job to support my family and not get my flying saucer repossessed because Judy and Jane will be very mad but I can’t keep getting yelled at and thrown out on my keister. I know I make mistakes sometimes but my intentions are always good.
Mr. Spacely: Even though George, dunderhead that he is, has been a trustworthy employee and cares about Spacely Space Sprockets. But, I can get someone to replace George, possibly for less money, and not have to deal with his antics.
George and Mr. Spacely are given the proper amount of time to rant and rave their complaints about the other party, in front of an unbiased witness, THE MEDIATOR, and have some sense of being HEARD.
Mediator: Then why haven’t you, Mr. Spacely, even though you’ve had 3 seasons and 78 episodes to give him the final boot? He must be some value to your company or you wouldn’t continue to rehire him. Also, have you thought about what a jury might think if they see the video of you calling George #@*$ and physically kicking George out of Spacely Space Sprockets? Have you talked with your lawyer about punitive damages? Do you really want an untrained employee replacing George? If you don’t get something worked out George may move over to Cogswell Cogs.
Mediator: And you, George. Have you thought how your resume’ is going to look after getting fired by Mr. Spacely so many times? What’s the likelyhood that Mr. Cogs is going to be interested?
At this point, George and Mr. Spacely need to be thinking beyond their personal point of view. That’s where the magic happens in mediation. Do some brainstorming with your clients to create a list of possible outcomes and work from there. This type of brainstorming does not happen in Court. The Court hears the facts, if they are admissible, and makes a ruling based on the law which does not always take into account fairness.