Negotiating Law Firm Layoffs: the Narrative of Mediation
For more than a week, I have been narrating a story of loss from the 1992 recession and my own recovery from that loss (or, more precisely, those losses). Had my narrative been a legal one, I would have been required to analyze my rights (if any) against the blameworthy and the remedies available to me according to the character of the blameworthy act and the nature of my loss.
As Professor Robert Rubinson has written in Client Counseling, Mediation and Client Narratives of Dispute Resolution, every legal narrative
starts, with [a] Steady State [the "Status Quo"] and the Trouble that upsets [it]: The world is in order. People are acting towards each other as they should, or at least no one is straying too far from the norm. And then . . . something happens. One party claims that another party did something to generate disorder, to make the world out of joint. In other words, Trouble disrupts the Steady State.
My story - at least the surface of it - was one of a (1) successful legal career (2) disrupted by the (3) Recession. A bad legal narrative because you can't sue the economy (at least not yet).
Rights and Remedies
If I'd wanted to assert a legal right and claim a legal remedy, I would have been required to survey the scene to locate someone whose activities were: (1) wrongful; and, (2) a substantial factor causing my termination. You might recall that I was told that my layoff had nothing to do with my performance and was solely caused by economic conditions firm-, industry-, state- and nation-wide. This was kind of the firm to say to me but it couldn't have been strictly true. Although I wasn't among the first group of layoffs, I was in the second. Third and fourth rounds would follow. Some people, however, would not be laid off at all.
So though the recession was the immediate cause of my layoff, there had to be others, many of them "rightful" but some of them possibly wrongful. In fact, more than a few of my colleagues suggested (for reasons I will not recount here) that I had a "pretty good cause of action" against the firm.
The litigation story always assumes one party was wronged and the other was a wrongdoer. It also assumes that one party's factual account of events is accurate ("right") and the other party's is inaccurate ("wrong"). As Professor Rubinson explains, litigation is a search for the "real source of Trouble." Furthermore,
[t]he assumption that one party is right and one party is wrong is not open to question; litigation is based on a shared norm among all participants (litigants, judge, jury) that only one of the litigants is right about "what happened." Since there is only one true source of Trouble, parties expend Efforts to demonstrate to the finder of fact that their story is the "right" one.
The parties are successful and the adversarial system is justified when
the judge (or jury) decides that the origins of Trouble are as [one] party claims [and judge or jury] Restores the Steady State by granting relief to the party whose version of Trouble is the right one.
I may well have had a colorable or tenable or "fair" or "good" or even "excellent" legal story that would have justified using the adversarial system in an effort to regain what I had lost -- money and benefits. But I haven't told a legal story this past week, I've told a mediation story.
The Working Parts of the Mediation Narrative
Though "mediation as settlement conference," has long been part of the legal "story" in which the search for "right" and "wrong" remains paramount, as a true alternative to the adversarial process, mediation,
rejects the idea that "what happened" is a unitary or stable "truth" to be found "out there."
Instead, a primary - if not the primary - thrust of mediation is that conflict resolution entails some recognition on the part of disputants that "what happened" is informed by perspective [requiring the disputants to] "begin to acknowledge another view of the situation," or [help the disputants understand that] two [good faith but] contending perceptions coexist" . . .
According to Rubinson,
the Story of Litigation [assumes] that conflict [itself is] a breach of the norms of conduct. . . [I]n mediation, conflict is a norm of conduct, a necessary byproduct of humans having distinct experiences and personalities and needs. Conflict is thus not necessarily a disruption of the moral order, and, indeed, can sometimes be productive . . .
The mediation narrative, says Rubinson, is set in the present, rather than the past, a present in which the parties engage in a cooperative effort to resolve the conflict in a way that meets the current needs and desires of the parties instead of "restoring" them to a state they enjoyed in the past. This story, says Rubinson, "does not generate a binary moral universe that divides the good from the bad, but, rather a universe that values collaborative striving to achieve common ground and resolution."
Mediation accomplishes this goal by
embracing the notion that perceptions of the world (including perceptions of the actions of others) are unstable, thus enabling parties to appreciate alternative perspectives as a way to promote resolution of conflict. . .
In the story of mediation, the "Trouble" and its "Cause" are not capable of being "discovered" and not worth the effort to "prove." Though the Mediation Story rejects portrayals of one "side" as the "victim" and the other as "oppressor," it commences with both parties characterizing the other as the cause of their distress. Instead of determining which party is to "blame" however, the mediation story requires the parties acknowledge one another's contradictory experiences as authentic; asks each of them to take responsibility for whatever part their own conduct might have contributed to the "Trouble" and resolves with an agreement in which the parties' present and future desires and needs are sufficiently satisfied for each to believe the resolution reached is the best they can, in good faith, do.
These are the broad strokes. The specific ways in which the mediation story can be accomplished (and its benefits and limitations) tomorrow. The roles of interest-based and competitive negotiation in the mediation story later this week.
Well, what happens when neither side of an issue is "right" or "wrong"? There's a lot of gray area that the law is asked to define, when I think that is a nearly impossible task.
What happens at the end of the Litigation Story when there's neither a "right" or "wrong" is that someone is further injured and suffers a greater sense of injustice. What we believe can and often does happen at the end of the Mediation Story when there's neither a "right" or a "wrong" is as follows:
1. the parties give up their view of a black/white, right/wrong, morally unambiguous narrative of their loss;
2. the parties often experience their loss for the first time because they must give up their belief that they will be completely vindicated at trial and fully compensated for what would otherwise be a loss;
3. one or both parties must accept their own and their opponents' human frailties as well as the role that circumstances beyond anyone's control played in their loss;
4. both parties must assume responsibility for their part in the loss-causing event (if any);
5. both parties must work together in good faith to arrive at a solution to what has become their mutual problem - the litigation and their inability to resolve their dispute without seeking the judgment of a third party who is a stranger to it;
6. one or both parties MAY experience forgiveness (giving and/or receiving); understanding; and, reconciliation with their opponent or simply with the way things are, i.e., often beyond our control but not beyond our ability to bear or our power to repair.