September 19, 2013

Mediation Misbehavior Not Protected

By Andrea Schneider

From FOI Natalie Fleury, here’s a great case arguing for good behavior in mediation:

During a shuttle mediation addressing alleged sexual discrimination, the charging party (and at-the-time current A.B. Data employee), Michael Benes, broke into the room where his employer’s representatives were situated and stated “You can take your proposal and shove it ** **** *** and fire me and I’ll see you in court.”  He apparently felt the offer was too low.

Not surprisingly, he was fired.  Mr. Benes then filed suit under 42 U.S.C. §2000e-3(a), the anti-retaliation provision of Title VII of the Civil Rights Act of 1964.  The district court granted A.B. Data’s summary judgment motion, deciding that Benes had been fired for misconduct during mediation, not in retaliation for the discrimination charge.  Benes appealed to the 7th Circuit. 

The Seventh Circuit Court of Appeals affirmed the district court, stating in part: “It was Benes who sabotaged the mediation session by barging into the other side’s room. Put to one side what he said there. Mediation would be less useful, and serious claims of discrimination therefore would be harder to vindicate, if people could with impunity ignore the structure established by the mediator. . . . Since §2000e–3(a) does not create a privilege to misbehave in court, it does not create a privilege  to misbehave in mediation.”

 You can access the full opinion here.  Hat Tip to Willamette’s RDDR Summer 2013 Issue 4.

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Comments

  • I cannot tell from the 7th Circuit opinion how the Court knows what happened during the mediation? There’s a nice law school exam question to be written on the basis of these facts, and it would demand that the students wrestle also with the confidentiality aspects of things.

  • Ryan Session says:

    This also brings up an interesting issue in how far courts are willing to investigate into mediation proceedings. WHile this does appear to be a clear case of bad faith by one party, the courts analysis or basis of its conclusion that the employee “sabotaged” the mediation seems to open the doors to a review of the mediation as a whole within the litigation proceeding. This presents a dangerous slippery slope where courts may essentially be re-evaluating the entirety of mediations and determining what specific acts could or could not be good or bad faith and have been the one definitive factor to “sabotage” a mediation.

  • Tea Norfolk says:

    This case presents an interesting illustration regarding the necessity for civility and following procedure. From the facts given, it seems as if the “injured party” did not get the full benefit of his opportunity to be heard because he allowed his emotions to get the better of him. An analogy is readily apparent between sanctions delivered for contempt of court and the penalty Mr. Benes received for not following the rules set forth for the mediation. One has to wonder whether he had an attorney present, and, if so, what was his attorney’s role in this outburst?

  • Jill Aufmuth says:

    In regards to the confidentiality issue, perhaps Mr. Benes alluded to the events of the mediation session in his pleading for the anti-retaliatory suit. If so, that may have been construed as a waiver of his privilege, thereby allowing ABA Data to waive its privilege also. There is not enough information provided in the case to tell. I did enjoy reading that the court referred to Mr. Benes’ firing as being an acceptance of Mr. Benes “counterproposal.”
    I am glad to see that the courts are not afraid to confront the issue of misbehavior that occurs during mediation sessions. While I see nothing wrong with being a ‘hard bargainer’ or strong negotiator, I think the line is crossed when that person does not show respect for the mediation process.

  • Stephanie Chiarelli says:

    I agree with the opinion of this court for several reasons. First, there should be some boundaries when parties are mediating. In this case, Mr. Benes was clearly out of control. In court, this behavior would be inexcusable and he could be held in contempt. Just because he is participating in mediation, rather than litigation, does not mean that all rules and social norms go out the window.

    Second, the company should be able to fire Mr. Benes for his behavior in mediation. This behavior would obviously not be appropriate in the work place and would result in a lawful termination there. Mr. Benes’ actions should not be excused because it was in a mediation situation. He was still dealing with his employer and should have acted accordingly.

    I wonder if Mr. Benes’ behavior was a result of the cacus mediation used here. Although it is normally used to defuse tense situations, it seems to have elevated the situation in this case. The mediator might have been better off having the employee and the employer in the same room so that they both felt like they were being heard. Furthermore, they would have been able to better understand what each party was feeling and Mr. Benes might have been more amicable to his employer’s offer.

  • Vince Morrone says:

    While courts should not be able to investigate every detail of mediation proceedings, there should be some leeway given to courts to investigate certain aspects of a mediation proceeding when a party to tries to sabotage the process of the mediation. This is exactly what the court seemed to be doing here, and it seems like it was the reasonable thing to do. This may not be the case for every case involving some type of misconduct, but given the particular facts here, the court’s decision seemed reasonable.

    Mediators establish the process and procedures for their mediations for good reasons and parties should not sabotage those processes. The integrity of the mediation process depends upon the respect given to it by the parties. Thus, when parties act out like Mr. Benes did here, they should have to suffer the consequences.

    Moreover, while breaking into caucuses may not be the most beneficial way to bring parties together, it seems like the use of caucuses here was reasonable. Given the nature of the case, I’m sure the parties were very emotional and probably felt very hostile towards each other. Thus, Mr. Benes should have respected the use of the caucuses here and left it to the mediator to relay his frustration with the employer’s proposal. Again, respect for the process is crucial to the success of mediations; thus, the Seventh Circuit’s ruling here seems reasonable in light of all of these facts.

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