“I will not divulge to the other side anything that you consider confidential without your permission.”

Such is the gravamen of a mediator’s promise to the disputants, and it underlies the very foundation of private negotiations.  Understandably, parties and their lawyers are obsessed with keeping anything they admit about the weakness of their case a secret.  In other words, a pox on the mediator who does not honor the dictum: “this is for your eyes and ears only! We’re only telling you this because it might help settle the case, even though it’s against our self-interest.”  The fear of telling too much is even greater if mediation fails, because the disclosing party may well want to take a completely opposite position in the re-activated litigation the following week, or month, or at trial.  Mediation ethics rules essentially prohibit anything disclosed during mediation from use in a subsequent proceeding but an admitted “bad fact” by the other side is hard to forget.

Pre-mediation statements prepared for the mediator - “for the mediator’s eyes only” - offer a concrete way for the parties to think through their respective cases, and for the mediator to begin mapping a plan for settlement.  It is extraordinarily difficult for advocates to concede weakness; observe the failed attempts by many lawyers to write a “non-adversarial” statement of the case in a summary judgment brief. But in virtually every mediation, especially those occurring before the complaint is filed or even drafted, the parties simply do not grasp how the other side is framing its case.  Particularly for individual plaintiffs who have little or no experience with litigation, the notion of how the other side could “sound good” to a jury is unfathomable.  

Thus, if a mediator wants to show part, or all, of a carefully constructed pre-mediation statement to the other side, it’s a good sign.  It means the argument put forth is at least somewhat, if not entirely, convincing. Likewise, by seeking permission to disclose a fact or argument previously kept hidden, the mediator is signaling that not only will the new disclosure aide possible settlement, but conversely, the “hidden” information will inevitably come out in the case anyway.  By being transparent (“candid”), a party gains the mediator’s trust and very possibly causes a little embarrassment for the obfuscating party and lawyer on the other side too.

Picture a person applying for a sales manager position. The applicant possesses outstanding qualifications, including 1) a solid work ethic; 2) strong leadership skills; 3) the ability to finish every task completely, no matter how severe the obstacles or distractions; and 4) the desire to work with, and on behalf of, a team. Sounds almost perfect. Why then, when the word “veteran” is added to the resume, do some employers hesitate and go to the next, non-veteran, candidate?

Despite significant resources and outreach by the U.S. Department of Veterans Affairs, the Department of Labor, the Internal Revenue Service (in the form of tax credits for employers who hire qualified veterans), and various state and federal laws that prohibit employment discrimination against veterans, soldiers returning to civilian life still face significant odds against finding a job that matches their skills. Most importantly, it’s difficult for them to stay in a position long enough to succeed.

Private companies, such as Bradley-Morris, the largest military-focused recruiting company in the U.S., emphasize that corporate America still operates with harmful stereotypes about veterans that hamper recruiting efforts, as well as precluding a successful transition to the civilian workplace.

Perhaps one of the most unfortunate myths is that veterans pose a security and safety risk because they suffer from post-traumatic stress disorder. Many civilians are ignorant about how few soldiers actually serve in combat and how even fewer have post-traumatic stress.

Only 15 percent of veterans from the first and second Gulf War eras (August 1990 to August 2001 and September 2001 to the present, respectively) saw active combat. Of those returning soldiers, fewer than one in seven experience some sort of post-traumatic stress which, as noted by recruitmilitary.com, an online resource for veterans, does not greatly exceed the incidence of PTS in the general population. As veterans’ advocates note, PTS is not even a “disorder,” but rather a common, normal, and often adaptive response to a traumatic or stressful event, for veterans and non-veterans alike.

Another unfortunate myth about returning military veterans who seek professional employment is that they can’t or won’t adjust to modern or “relaxed” corporate culture. Certainly, the use of formalisms such as “yes, ma’am” and “no, sir” have virtually disappeared from today’s workplace, but they are still the rule for soldiers.

The hierarchical nature of the military unquestionably trains people to give and take orders, but as civilian employees, they may be less familiar with getting “buy-in” before implementing any decision. These and other communication-style differences are problems that a motivated and well-managed team can work through, however, and for a military vet, teams are what they know and what they value. Vets are used to making sure everyone in the unit knows what’s going on at all times, so that all can survive. Translating that to the maxim, “so that all can thrive” sounds like a refreshing change for some workplace teams where getting ahead as an individual is the norm.

Perhaps the most poignant advice for veterans appears on the VA’s “Veterans Employment Toolkit,” a website created to help them readjust to civilian life. Under the subheading “Creating Structure,” the VA counsels:

“The military provides structure and has a clear chain of command. This does not naturally exist outside the military. A veteran will have to create his or her own structure … and adjust to living in an environment with more ambiguity.”

In the 1946 classic Academy-award winning film, The Best Years of Our Lives, three veterans returned to their hometown after World War II to face difficult adjustments, including unemployment, adultery, alcoholism, and ostracism.

The late movie critic Roger Ebert noted how relevant this movie would always be, because, as he said, “As long as we have wars and returning veterans, some of them wounded, The Best Years of Our Lives will not be dated.”

Like those World War II veterans, our soldiers today have to deal with the “ambiguity” of civilian life upon their return. Employers who go beyond the platitudes of patriotism and actually offer these highly disciplined individuals meaningful work and an environment where they can thrive are not only smart, they are richer in innumerable ways.

This post was first published on TCBmag.com

“Do we see eye to eye on this matter?”

“Don’t you think you’ll just settle anyway?” For most litigants, the very mention of the word settlement (and its inevitability) in the middle of a hard-fought lawsuit evokes feelings of anger, frustration and confusion.  A tiny percentage of cases feature one side with significant motivation to settle early, fearing, for example, bad press, bad legal precedent, or the uncovering of more bad facts. But the bulk of civil lawsuits that laboriously wind through state or federal court feature parties wholly invested in the fight and in the outcome - an outcome where their side comes out on top.

To capitulate prematurely before having their “day in court,” which society has encouraged them to believe is the fair way, indeed, the time-honored way, to resolve a legal dispute, spells anathema to “must win” litigants.  Even as legal fees pile up, endless discovery saps resources, and initial or partial judicial rulings confuse, rather than elucidate what’s at stake, parties become more entrenched in the notion of winning and less inclined to settle.  

Enter the mediator, perhaps court-appointed, perhaps agreed-upon by counsel.  Hearing from the mediator that “ninety-eight percent of all cases settle before trial” or some equally dubious statistic does little to calm an angry party.  “Well, I’m in that 2% that’s going all the way,” is one common response from parties who feel, or in fact are, being forced to discuss settlement. At the heart of the dilemma is the unappealing vision that someone with no skin in the game is going to force them to give up on their desire to be made whole, on their need to get even, on their choice to fight back, to prove a point, to stand by their principles.  No, they will not give up and “just settle.”  

Missing from the thought process of a party who vows to never give up is the likelihood that his opponent doesn’t relish giving up either.  Neither side is willing to take on the label of “loser” from some entity or process other than the court. That’s the moment an effective mediator starts talking about what life after the lawsuit might look like, that is, if this dispute were gone from your life today, what would you gain?

While money remains the nexus of civil litigation - who owes, who pays, who suffers most - it is the emotional balance within each side and each person involved that is most crucial to resolution.  Doing away with the antiquated notion of “giving up” jump-starts the process.