Many attorneys and mediators who specialize in employment law see the field of family law as far less sophisticated. The complexities of disability discrimination or nuance in harassment cases are a far cry from the mundane and even chaotic domestic disputes. But work and family are both innately tied into our human identity and conflict in either area wreaks serious emotional havoc. When that conflict is tied into the legal system – claims for alimony, children, support (family) or discrimination, wrongful termination, harassment (work) – the normal outcome is permanent separation. This is hard in either situation. The plaintiff in the employment case or the parties in a family dispute are locked in deep emotion. How could you do this to me? How could my company accuse of me this? terminate me after all the good years I have given? why would you upset my life like this?
To disentangle in either the employment situation or the family situation, the parties have no need to agree to the factual underpinnings of the case. The emotional process that must happen, however, is key and it is strikingly similar. Until each side has had the full opportunity to tell their story, be heard and understood they will not be ready to negotiate a business settlement that will be in their best interest. And that story has to be heard with empathy and with support and sometimes even by the other side. The legal system and often even the mediation process itself do not allow any party in the process the opportunity to tell their story. Telling your story is irrelevant and often hurts you in deposition or other phases of the legal process and more often than not no one wants to take the time during mediation to cover that ground. Time is money after all and all that venting ends up costing a lot of money.
However, the catch-22 is that without that venting – without human kindness and empathy toward the story, there is little possibility of getting aside to make a good business decision. More than likely they will simply steamroll toward trial ignoring important legal risks along the way. This is because the risk becomes worth it. Since no one else is listening – perhaps the judge will see my story. Then the thinking continues that if the judge sees my story he/she will make me the winner and finally validate me. That validation cannot and should not be tied to that kind of risk. Getting the validation is one thing – making a good decision about the case is quite another.
It is key in these kinds of cases to start working on the validation aspect of the case early. Lawyers may want to think about introducing their client to the mediator earlier in the case for some premeditation conferences. Or, having the client exposed to a neutral third party (coach) whose role is to help the client move forward emotionally and see their case more objectively so they can make a good decision about it. We all know most employment and family cases resolve better in mediation than in court. But lawyers, employers, insurance companies must understand that part of the settlement process has to be focused on helping all parties get past the emotion and focused on making a good sound business decision.