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How a Skilled Mediator Can Deliver the Best Resolution the Parties Didn’t Know They Wanted

I recently mediated an employment case alleging racial discrimination and wrongful discharge. The plaintiff kept reiterating his belief that he had been treated differently from his Caucasian counterpart because of his race. The defendants kept insisting there were factors which distinguished his counterpart’s situation and pressed the plaintiff to acknowledge his deficiencies on the job that led to his termination. At that point, the plaintiff went back to his claim of disparate treatment.

After several of these volleys, I interrupted the tennis match to ask the plaintiff: “What is it you want from the company?” He looked shocked, paused for a moment, then said, “I just want my job back.” He then proceeded to tell everyone how losing his job caused him to seek help. He discovered he had been struggling with attention deficit disorder all his life, but it had not been caught until he lost his job. He began therapy and learned how to manage his life activities around his condition. By the time of his mediation, he was holding down a full-time job and training others. He was certain he could overcome the issues he had experienced with his former employer to again do the job of his dreams.

I called for a break to allow the management team to confer privately. They returned within a few minutes to offer him an opportunity to return to his old job, but at a different facility with “kinder and gentler” supervision, extra training, and resources to help him succeed. The regional COO agreed to personally ally with the plaintiff to give him every possible means of succeeding in his job. One of management’s representatives who had been particularly hard on the plaintiff in the negotiation, asked if he would like to speak with another employee with the same condition. The plaintiff responded enthusiastically, “Yes!” The representative said, “Normally, confidentiality and HIPPA would prevent me from giving you his name, but since he is my son, I’m going to anyway.” At which point several eyes moistened and the plaintiff realized he could now trust management to treat him fairly.

A dispute which had been ongoing for nearly a year, resolved in two hours.

Knowing when to keep parties in the same room and when to separate them is a skill mediators acquire over time. Asking questions is our stock in trade. Often, simply asking a question to determine exactly what people are seeking leads to an answer which crystalizes and makes an abstract idea or vague request concrete. From there, it is easier to negotiate a resolution.

Occasionally, that question unlocks a deeper story.