Intro: 00:01 Human resources, employee relations, the legal department are aligned against you. Your employer has trained for this day, the day you've become an expendable number at work. There are robust laws that may protect you, but unlike the company, you've not been drilled on how to wield them. You're playing catch up. There are pitfalls to avoid and counter measures to deploy that may save your job or puts you in the best position to negotiate a favorable settlement. Minutes matter, your words and actions matter even more. The Walking Papers podcast offers the first foray into learning how to turn the tables when you've been targeted. Knowledge is power. Let's get started.
Robert Ingalls: 00:45 Welcome back to another episode of the Walking Papers podcast. I am your host, Robert Ingalls. And today, I am here with attorney, Josh Van Kampen of Van Kampen Law, and attorney, Steve Dunn, to talk about mediation. Not to be confused with meditation. Is that something you hear a lot, Steve?
Steve Dunn: 01:05 I do.
Steve Dunn: 01:06 When I started Steve Dunn Mediation, I was contacted by several of my former friends and classmates who asked me what had happened in my career that I decided to get into the meditation business. And I was able to explain to them that what I'm doing is simply a part of my law practice that I've decided to make my whole law practice.
Robert Ingalls: 01:27 That would be a drastic career change.
Steve Dunn: 01:29 Yes, yes. It would've been, it might've been good for my health. But I think what I'm doing is also good for my health.
Robert Ingalls: 01:35 Yeah.
Robert Ingalls: 01:35 Although, being involved in the law myself, I think that a number of our clients could probably benefit from some meditation before mediation.
Steve Dunn: 01:40 Before, during, and after, probably.
Robert Ingalls: 01:43 So give us a little bit of your background and what brought you to this meditation practice.
Steve Dunn: 01:49 All right.
Steve Dunn: 01:49 Well, I practiced as a lawyer for 21 years, primarily representing employers in disputes with their employees or their former employees. And I got to know Josh Van Kampen and his law practice, typically from being on the opposite side of cases over the years. And we've had the opportunity to work together a number of times, both as a lawyer and also as a mediator. And I recently, as of just a few months ago, have become a full time mediator. And so rather than handling my own cases and representing my own clients, I now work with other lawyers and their clients to help resolve the disputes that they're involved in.
Robert Ingalls: 02:27 Oh, lovely.
Robert Ingalls: 02:28 So briefly, what is mediation?
Steve Dunn: 02:31 Mediation is a gathering together of all of the parties to a dispute for the purpose of trying to find a way to resolve the dispute.
Steve Dunn: 02:41 So a lot of my work is in the litigation context. But mediation does not have to involve lawyers and it doesn't have to involve law suits. But in cases where it does, we all get together, the parties and the lawyers, with me represent a neutral third party. Someone who does not have an interest in the outcome of the case and who may or may not even know much about the case before we begin the process. And so I'm there as a sounding board, as a stand in for the way a judge or a jury might hear the case. And I'm there to help facilitate a settlement of the case. So we all get together, we talk about our perspectives on things. And my job is is to guide the discussion toward a resolution.
Robert Ingalls: 03:31 So I expect that people could come into this process a little bit nervous. And I think this podcast could probably help alleviate some of those concerns. What would they expect when they arrive? What is the process that they're going to be going through?
Steve Dunn: 03:45 Usually we start out getting everyone together in a conference room. And we begin with everyone having an opportunity simply to say whatever they want about how they view the dispute. Sometimes the lawyers do the talking, sometimes the parties will speak on their own behalf. But the idea is to communicate, both to me and to the folks on the other side of the table, your perspective on how we got here. And what you may think are the strengths of your position, how you see the case ultimately getting resolved, if it proceeds past the date of mediation. And then usually the other side will have an opportunity to respond to that. And what I encourage folks to do is to be very forthcoming and frank with each other in that process, both about the strengths of their position and also the weaknesses, to be honest. Because in my experience, the more candid and forthcoming the participants in a mediation can be with each other, the more likely it is that we're going to end up settling the case.
Steve Dunn: 04:51 And then at some point, usually after this initial opening session, we will split up into different rooms and the employee or the claimant and their lawyer will be in one room and the employer or the defendant will be in another room with their lawyer. And I will travel back and forth, spending time in each room, hearing from each side a little bit more about how they see their dispute. And then conveying offers and counter offers back and forth with a goal of, at the end of the day, reaching an agreement that provides for a resolution of everything.
Robert Ingalls: 05:28 Now, is this something that if I had a mediation coming up that I could consider perhaps doing myself or should I hire an attorney for this process?
Steve Dunn: 05:39 Mediation can exist in many different contexts. But certainly if you're in a legal dispute or you anticipate being in a legal dispute, as a lawyer myself, I think you should be represented by an attorney. I think that an attorney can be extremely useful to someone participating in mediation, in terms of being helping you to be realistic about what to expect from litigation. Helping you be realistic about the going rates of settlements for different kinds of cases, in coaching you through what litigation's going to be like, what your life is going to be like as a person involved as a party in litigation.
Steve Dunn: 06:19 One of the first things I tell parties in mediations in which they're represented by good lawyers is that what they really need to do is listen to their lawyer and follow their lawyers advice. And my job as the mediator is to help find an area of overlap between where one side or the other is trying to resolve the case and try to nudge them both a little bit toward each other so that we can settle it in the end.
Robert Ingalls: 06:46 Now, if the company reaches out to me, my employer, former employer reaches out and they're offering to mediate the case, should I go to that? Is is there any reason not to?
Steve Dunn: 06:57 Well, as a mediator, I have a strong bias in favor of mediation. And that's because it's a process that is effective and works. And I don't see any downside to it in the vast majority of cases. I encourage people to participate in mediation early and often. And that's not just because I'm a mediator myself, but even as a lawyer, I have seen disputes get resolved that I thought had no chance. And there's something about the process that works. There's something about gathering together with a purpose and having a neutral third person who's there to prompt the parties to think about their case in different ways that is effective. And it's generally in everybody's interest to settle cases rather than to litigate them through trial. And since mediation is, in my view, the most effective way to do it, I don't see any downside to it. I would encourage anybody to participate in the process.
Robert Ingalls: 08:03 Well, one of the things I know people are thinking, and it probably scares them the most is, "Am I going to have to speak? Am I going to have to say anything?"
Steve Dunn: 08:11 Right.
Steve Dunn: 08:12 And usually in the opening session, where everybody is together and it's a more of a formal situation, where I'm saying a bunch of stuff that I'm required by the rules to tell you. If folks have a reluctance or anxiety about public speaking, there's certainly no requirement that they speak in that context. But through the course of the day, especially when we are separated out into our individual rooms and I'm spending time privately with the party and their lawyer, I find it extremely helpful to talk to the parties and to hear from the parties. It's integral, I think, to the process, to hear what their interests are. And to encourage them to imagine, articulate why it's important to settle the case.
Steve Dunn: 08:58 And to imagine and to articulate what their life is going to be like after they settle the case. I think that that's part of the reason that the process works. And so it's not a public speaking kind of thing. I consider it, for the parties, an opportunity to make sure that their story is heard by somebody who's not biased against them, who is not even biased for them. Somebody that they can talk to and hopefully, if I've done my job well, I have established credibility and a rapport with that party. And that's one of the essential things that I try to do, is to establish an environment of trust. Where folks can feel free to speak their minds, truthfully and honestly, about where they are in their dispute in their lives.
Robert Ingalls: 09:45 It sounded like you were walking him through a bit of a meditation practice as well.
Steve Dunn: 09:49 Well, look, I heard a lawyer say the other day that a good lawyer is part preacher, part psychologist, and part gladiator or something. It was something like that. And I think that it is quite ... although we were joking about meditation, there is a spiritual component to the process. And that's true whether the parties are explicitly religious or not. Because you're talking about folks lives, you're talking about what they go through on a day to day basis. You're talking about folks conceptions of justice and fairness and what's right. And those are all spiritual considerations. So being able to relate to people on that level is an important part of the job.
Josh Van Kampen: 10:36 Yeah, and we're really lucky to have Steve participating today. Steve actually was one of my first opponents when I arrived here in Charlotte as a plaintiff side employment lawyer. And it was a contentious case that the senior partner at Steve's firm had moved along to him pretty early in the case and had some challenges. And he did a wonderful job for his client. And one of the reasons why we hire Steve so much is because he was such an effective management side attorney and was not really the lawyer that I wanted to be going up against. I like to go up against lawyers who are sort of antagonistic and juries don't like, which is-
Robert Ingalls: 11:16 Is that not Steve to push the good ones into mediation so they can help you settle your cases?
Josh Van Kampen: 11:20 Yeah, I would say so.
Josh Van Kampen: 11:21 So just building on a couple of the excellent points that Steve raised about opening statements. So you know, usually like you were saying, Rob, the clients don't want to be speaking in the common session with everybody in the room. And one thing that we didn't discuss was like, "Well who is going to be across the table from the client?" And the company will typically have a lawyer obviously. And so one of the reasons why the default is for you to bring a lawyer to the mediation is that the company almost always has a lawyer. But also across from the table will usually be some sort of executive from human resources, and sometimes, it can also be like the manager that you have the issue with. And we always discourage the participation of the decision maker and the dispute being there. It's counterproductive, but we really can't control what company representative is going to be there.
Josh Van Kampen: 12:15 But we always tell our clients, "You have to be prepared to look across the table from somebody who may have harmed you and is the reason why you're in the mediation in the first place. But like for us, I agree with Steve that the opening statements are really important. So we work really hard with our clients to be able to tell the story in a compelling and effective way. 'Cause we have to basically educate the mediator and we also need to be speaking to the company attorney or decision maker in the room because, ultimately, the mediator can't force them to sign a check. It's cajoling and convincing the employer to voluntarily sign this check. So when we're giving an opening statement, we really have two audiences. We're educating the mediator but we're also speaking directly to the company decision maker in the room.
Josh Van Kampen: 13:06 And so I'm often often telling my clients like, "Look, there's just not going to be fire and brimstone here because it's not effective." And so if anything, I'm going to be understated about the things that happened, but understand that there's a a reason for it. But like Steve was saying, where it is really critical to have employee participation is in the caucuses, when there's the shuttle diplomacy that's going on. And at that point I just take the guard rails off with my clients and basically say, "You should feel comfortable to say whatever you want to the mediator or educate the mediator." And if you say something that I don't want the mediator to share with the other side, then I'll say, "Steve, don't say that." Because sometimes my client will put their foot in their mouth in that session. But that's what's so nice and the process is just for me just to be able to say, essentially, "Well, Steve, you didn't hear that part."
Steve Dunn: 13:54 Well, I think that's an important point. Is that, a couple of things, one is that the process, at least as to me, is confidential. So I am not allowed to go out into the world and tell people about what was said. And generally speaking, the settlement discussions themselves are inadmissible in court. So the rules are set up in such a way that the parties are encouraged to just speak freely and just get it all out there. And as the mediator, that's certainly the most helpful approach, for me, to help settle your case. And as Josh said, if, if you say something that strategically we'd rather not share with the other side at that moment, you just let me know that. I was a lawyer for a long time. I'm good at keeping secrets, and that's part of the deal and that's fine.
Steve Dunn: 14:44 A lot of times I'll try to talk you out of that. A lot of times I'll try to suggest maybe the other side should know about this witness or what you think the evidence is going to show. So that we can either confirm that or deny it. You know, you might be right and you may be wrong. Either way, it's best to know today to help us settle this case. But otherwise, if you don't specifically highlight something for me not to share with the other side, I just use whatever I see in here. And that may be as something as simple as body language or the way that you react when I mentioned a number that you hadn't thought of before. I use all that stuff to try to help settle cases and it works.
Robert Ingalls: 15:28 Is there anything going in that a client should know, like do's and don'ts? Are there things I should do or the things I absolutely shouldn't do?
Steve Dunn: 15:36 You know, I think we all have in mind the things that we would like for our clients to do and not do. And realistically, we have to predict that all of our preferences are going to go out the window. What I think happens, though, throughout the ... what I would prefer, would be if folks didn't come in with a rigid notion of how the case needs to get resolved. I would prefer if people came in at least a little bit open minded about that. Realistically, that's, I think, pretty rare. I think usually folks ... now what I would prefer is for folks to have a rough idea about case needs to get resolved. You can air on both sides of this, right? It is unhelpful for the parties to arrive having had no thought or no discussion of how the case is going to settle.
Steve Dunn: 16:27 You need to have some level of preparation as the party and the lawyer. But on the flip side of that, generally speaking, in my experience, something's got to change on both sides of the table for a case to settle. And so if you come in with a bottom line that you consider to be sacred and inviolable, then that can be an impediment to settlement. And ultimately, that can be to your detriment in a case where it'd be better off for you to settle today. And what it does is it erects a psychological barrier that doesn't need to be there. Where a party comes in, says, "I got to get X number of dollars or I'm walking out the door." And then even though it would be in their interest, ultimately, to revisit that, they feel as though they're letting themselves down if they do. There's a mental reluctance to break through those types of lines.
Steve Dunn: 17:25 And look, part of my job is to help you manage that and to help you reimagine your assumptions coming in. But I guess what I would encourage folks to do heading into mediation is to think about some rough ideas of what they'd like to accomplish and intentionally be open minded about where the conversation might go.
Josh Van Kampen: 17:48 And let just build it. Building on that, one of the reasons why I hire a skilled mediator is because they have really valuable insights into strengths and weaknesses of a case. Especially when you have somebody who's a former management side attorney. So I often encourage my clients to, one, listen to the mediator and then also don't get mad at them. You know, they have a job to do, which is to poke and prod and to challenge in both rooms. And so we want to understand that the mediator has his heart in the right place and when they're challenging these sorts of positions. But from a plaintiff's perspective, a common mistake for a client can be not realizing that you are being observed during the opening session by your opponent. And so oftentimes, when the defense attorney is giving an opening statement, they'll say some things that might be inflammatory or hurtful or flat out wrong.
Josh Van Kampen: 18:43 And I always tell my clients to go in there and just assume that they're going to accuse you of being a witch or whatever, something scurrilous. And to not register any sort of effect when you hear it. Because you're basically on display on how you're going to be with a jury. And so if you show that you can't be as ... my term for them is cool as a cucumber, then you're devaluing your case. And what's surprising to me is how many times, even though I'm trying to be diplomatic in my opening statement, the company executive or human resources person will get flummoxed and flustered. I'm sure other people have observed that as well. Martina Edwards, who's going to be next this year and shaking her head. So that that's a really important thing is to not register any sort of anger.
Robert Ingalls: 19:34 And I assume that one of the things that probably derails things, sometimes is in the beginning the other side throws out a number that is maybe a few zeroes away from what you were thinking it might take to get this done. And I could see, does that sometimes blow things up?
Steve Dunn: 19:51 Yeah, there's a whole science around that. I find myself saying almost every time, "I'm not concerned about the first number." I'm much more concerned about the last number than the first. And there's a lot of different ways to get to the last number. And as long as we get there, I don't care how we get there.
Steve Dunn: 20:13 People, when they send a number, they also send a message. And I encourage people to be explicit rather than shy about what that message is. So for example, we're going to offer X number of dollars and we think this is a good legitimate first step. We're trying to skip the first three low ball offers that you might have expected from us. Or we're going to send back this number and you need to know we're getting close to the limit of what we can possibly do today. I like to forecast or foreshadow what's coming along with the number. But yeah, no, the first number is never accepted and that's part of the process that parties who don't do this stuff all the time, it's important for them to understand in advance. Sort of this, I don't think lawyers have figured out any other way than this back and forth, tit for tat, offers and counter offers. It's not necessarily the best way to do it, but it's almost the only way we know how.
Robert Ingalls: 21:12 Yeah.
Robert Ingalls: 21:13 Now, let's say we go in there, we get the result that we were hoping to get, or at least it satisfies us, and we leave that day. Are we done? Are we free to talk about it?
Steve Dunn: 21:25 Well, generally speaking, it's a bad idea. Oftentimes, there are contractual agreements regarding confidentiality in connection with settlements. That's not always the case, but whether or not, I would suggest in almost every case it's a best practice, both for your legal position and also for your life, just to keep that stuff to yourself. I know that there have been some situations in which settlements have been derailed because of communications that the parties had after the mediation was over.
Robert Ingalls: 21:59 Now we heard a lot about settlement mediation being a good way to settle a case. Should someone feel compelled to settle at mediation?
Steve Dunn: 22:09 Well, so here, I think it's important to distinguish between mediation and arbitration, which is another form of alternative dispute resolution. And the key difference there is that I, as your mediator, cannot force you to do anything. At the end of the day, everybody who is participating in the process either agrees to the resolution or we don't have a resolution. Whereas, in an arbitration, the arbitrator acts more like a judge. And at the end of that process makes it decision, which is binding on the parties whether they're happy about it or not. So just as a matter of how the process works, you can't be forced to settle with mediation. And although, I, as your mediator, believed that settling cases is almost always in the interest of the parties, we have to recognize that it doesn't always work and it doesn't always work on that day. And there could be a lot of different reasons for that.
Steve Dunn: 23:08 Sometimes the parties just disagree about what the value of the case is. And sometimes that can't be overcome. Sometimes the parties, maybe they don't disagree about what the value of the case is, but the people who are sitting in the room that day are only authorized to settle the case up to a certain level. And if they're going to go higher than that level, then they got to call some higher level person and that person's on a plane. And so for logistical reasons, the case can't be settled at that moment. But so no, mediation, I try real hard to settle cases on mediation day. I think that's the best way for the process to conclude, but we have to recognize that sometimes there's reasons it's not going to work out.
Robert Ingalls: 23:51 Now, Josh, I knew earlier you were telling me about a case that went sideways after mediation. I think it had to do with a Facebook post?
Josh Van Kampen: 24:00 Yeah, yeah, sure did.
Josh Van Kampen: 24:01 And I actually have two anecdotes. Unfortunately, one of them belongs to me and one doesn't. But the one that really blew up for the client involved, case down in Florida actually. Where there was a pretty lucrative settlement that was negotiated in a case. And then the daughter of the plaintiff, the plaintiff was a dad, found out about the settlement and she went on her Facebook page and she had some thousand followers. And which she said, "Mama and Papa Snaye won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. Suck it," all caps.
Robert Ingalls: 24:39 I hoped she used the hashtag there.
Josh Van Kampen: 24:41 No, no, she sure didn't.
Josh Van Kampen: 24:43 Well anyway, that got back to the employer before the settlement checks were sent. And as a result, of course the employer said, "Well, you breached." Now the dad didn't disclose that, but the dad disclosed it to the daughter who disclosed it. And so, you know, as a result, basically their waiver was effective. In other words, that father's rights were extinguished and he didn't get any compensation for it because of the breach by the daughter. So, you know, I always tell my clients that you have to keep this as like a dark family secret, even though it's something you may be proud of. And the worst thing you can do, especially, is tell the number to anybody. Because if the number is out there in the ether, then they know you talked, 'cause why else would people know the settlement number?
Josh Van Kampen: 25:29 So that that thing, in particular, needs to be strictly confidential. And so there's always carve outs to be able to tell your spouse, for example. But then you got to be careful there, too, because sometimes spouses become ex-spouses. And so if I had my [inaudible 00:25:45], I would say, "Well geez, maybe just tell your spouse about the settlement. Do they need to know the number?" But anyway, we got to guard at closely. But I remember early in my practice, I don't think I ever told you this story, Steve. But so I got a good settlement for an executive and I went over at length, especially 'cause it was a good deal, the importance of him not telling anybody. But he goes out and he buys a brand new Corvette.
Josh Van Kampen: 26:08 Blue Corvette, drives it conspicuously to work, you know, like parks it right in the front where people are going to see it. And goes in, and I don't know, maybe just getting his stuff, I don't remember. But he did that because he wanted people to understand that he came out on the positive end to this. Not a breach of any of his obligations. Really, just being classy and all, I would prefer that that not sort of thing that happened. But, yeah.
Robert Ingalls: 26:37 All right, Steve, we've covered a lot of ground here. Is there any one thing you can think of that you wish someone knew before coming into a mediation that we haven't covered?
Steve Dunn: 26:46 The best thing about settling cases at mediation is that we can agree to all sorts of things that a court could never do. Even if the court thought it was a good idea. Courts are very constrained in what they can order. And typically, in employment cases, it's usually they're just the payment of money or no payment of money. That's basically it. We, on the other hand, can come up with all kinds of other ways of resolving disputes. And it's a bit of a frivolous example, but it was a real one. Was I was involved in a case one time where, as part of the settlement, the plaintiff was a woman who she had her problems with their supervisors, but she really liked the HR manager. They hit it off and got along very well over the years. And he was the company's representative at the mediation.
Steve Dunn: 27:39 And at the end of the process, we agreed on all the terms with the money and the non-disparagement provision, what the reference was going to look like, and how long it was going to take for the money to be paid and all that. And then at the end, she said that she would just really appreciate it, as part of the deal, if we threw in that he would give her a hug. And a mediator came and seemed a little sheepish about it and asked, "Would you be willing to give her a hug?" And he looked at me and I said, "Yeah, give her the hug." And he gave her the hug. We signed the papers, we actually didn't put the hug in the papers, but we signed the papers. We met out in the lobby of the law firm.
Steve Dunn: 28:14 They gave each other a hug. Then the mediator looked at me and asked me if, I too, would like to give this lady a hug. And so I gave her a hug. And we worked a hug into the settlement agreement. And it's kind of a funny thing and it only happened the one time. But there are often items that have value to one side, that either the other side never thought of or they don't care about, or it's easy for them to give. And if you can make those things, whether it's a hug or anything else, if you can make that a part of the discussion, that's part of how mediation can resolve cases in ways that just courts are not equipped to do. So I encourage folks to think about those things and let me help you think about those things.
Robert Ingalls: 28:58 Well, thanks, Steve. That was a lot of good information and I hope we can have you back again soon for perhaps some guided meditations next time.
Steve Dunn: 29:05 All right, that's fine. Steve Dunn Meditation will be my next business.
Robert Ingalls: 29:09 All right. Thank you.
Intro: 29:13 Congratulations for taking an important initial step in turning the tables at work. But this podcast is just an educational resource. It does not constitute legal advice and is no substitute for consulting an employment attorney about your unique situation before making legal decisions. Visit our website for more online resources and videos at NCemploymentattorneys.com. Or better yet, call (704) 247-3245 for a free initial intake interview. So Van Kampen Law can evaluate your case.
Intro: 29:43 Until next time, keep your head up and your wits about you.
