Does Mediation Do Justice?

I presided over two tough employment cases this past week. In both cases, neither Manager/owner nor claimant/employee were American born. In both, claimants were very young, very attractive women/girls in their early 20's working for the first time in this Country. Like many cases in California,the employers failed to adhere to strict wage and hour laws and were accused of sexual harassment. Although the employer/managers were in each instance either ignorant of or intentionally ignoring the strict laws of employment, there was no allegation of any intent to harm.

In the second case, after the settlement was reached, the owner posed a probing, rhetoric question to me: "Is there no justice in this Country?" I had to take a deep breath and reflect upon this. The truth is, I don't profess to be after achieving justice. I see that as the province of judges and juries. And sometimes I don't even think the laws are just as they apply to the facts of a particular case. Yet, I hope that in most cases which I mediate, some rough justice is achieved through agreement as to the likely result in court v. pre-trial. Maybe that's different than "fair". I'm also reflective about men and their flirtatious nature, and young, attractive women, and the extra protections they are afforded. Without protest or actual harm (there were no claims of improper touching, for example, in either case--just flirtatious gestures, words and suggestions) these young women do have legitimate and valuable claims for monetary damages for being the recipient of what in many countries and cultures is considered to be flirtatious banter. In Europe, for example, affairs are commonplace and even political figures are not criticized for their well known mistresses and womanizing. Here, the allegations amounted to sufficiently egregious behavior to call for damages. Here, the conduct is not tolerated, especially in the workplace, even though it's common in other cultures and in many other settings than the workplace. A curious thing, justice.

P.S. For those readers who are curious, that Subpoena has not materialized yet...but my insurance carrier has my claim form waiting just in case!

Duties to Clients or Country?

Well, here it comes. I'm about to receive a Subpoena in a U.S. District Court Case which didn't settle and went to trial for my mediation notes. I've been talking to the lawyers all week. Up until now, I considered them to be my "clients" (together with their clients, none of whom I met at the hearing). I didn't see any obligation to produce notes (and I didn't keep them) of the confidential negotiations, but I also didn't see any harm in making ex parte communications as to how I recalled the negotiation going. (No offers no demands, the parties, 18 months ago, were too far apart to settle absent a whole lot of discovery and investigation into an alleged civil rights/police false arrest case). So I told the lawyers what I remembered and that I had no notes. Next best? My testimony! Not going to do it, but it will cost me some in quashing the subpoena or hiring someone to make a special appearance to advise the court of why I'm not going to testify. What a country! I'm pretty confident that the confidentiality clause will be upheld and I won't be required to testify or produce notes, but the process for that response is sure still elusive. Also, the Federal Judges in our District don't seem to appreciate the sanctity of the negotiation process in the same way as State Court Judges. This isn't the first time a mediator in our local area has been asked to testify about the negotiations. What a mess!