What typically happens to a person who is in a dispute and wants to “get his/her day in court”?
Much of my practice is either representing employers or employees in employment disputes or mediating employment disputes. The first call from an upset employee usually goes something like this:
“I have been terminated/demoted/not promoted/discriminated against/harassed by my employer. This was wrong/unlawful/unfair/unwarranted/harassment. I want my day in court. I need to see justice be done here. There has to be a fairer way to handle this situation. I want these _____ (fill in as you will) to pay for this. They have wronged me and I want my vengeance. They shouldn’t be allowed to do these things to me or to anyone else….”
Sound familiar? Most employees at one time or another have had the sentiments expressed above and most employers have heard them expressed by employees. Workplace disputes are important to those involved; they are emotional. One reason I chose to work in employment law is because what goes on in the workplace is really important to people — employees and employers alike. It is where many of us spend large parts of our waking hours. I’m motivated by the desire to contribute to making the workplace a productive, positive environment. This is in the interests of both employers and employees. I’ve been a lawyer and litigated cases for over 20 years but, naïve as this sounds, my professional interest as a lawyer is to help make the workplace, the community and the home healthy environments, places where people can thrive, feel productive, valuable, secure, positive and happy.
I can appreciate the frustration, disappointment, anger, anxiety and pain of those who suffer adverse experiences in the workplace, and understand the initial sentiments and emotions of that first call to a lawyer, seeking out someone who knows the law that can help them, counsel them, represent them, intervene in the matter and help them get relief and satisfaction. Their goal is to fix this situation somehow and be made whole; perceived or real wrong(s) need to be made right. Their story needs to be told and heard, either by the other side, a decision maker or both. They need to be able to feel good about moving on and feel that in the end, there was fairness, or at least an appropriate resolution.
But there are also the stark realities of litigation. Start with this counterpoint to “wanting my day in court”: Over 95% of cases filed with courts never go to trial; they settle. So the overwhelming odds are that most people are never going to see that actual day in court. Either the case will get decided by a judge, or will get dismissed, or the wronged party will run out of money, energy, time, emotional bandwidth or all four. Or they just can’t afford to pay a lawyer to take their case. Or at some point, thousands of dollars and years later, the case will settle before it gets to trial. These are the hard facts.
In a very emotional and complicated case we resolved a few years ago, our clients told us that while they wanted to get some payment of monies for the wrong they suffered, their “day in court” was accomplished in a mediation when the parties on the other side had to sit quietly and listen in person to the stories of each of our clients get told, without being able to interrupt them or shout them down.
In another case, a victim of sexual harassment found her day in court in a settlement that included punishment for a wrongdoer and mandated trainings for the entire organization. A key part of the resolution, aimed at changing the culture of the workplace, helped give her that “day in court”.
Sometimes it’s hearing an apology from the perceived wrongdoer. Other times it’s the long awaited acknowledgement or validation from a supervisor of the person’s views, predicament or worth. Each party’s day in court is different.
In order to succeed in helping parties get their “day in court”, we as mediators or advocates representing clients need to know what is behind that stated desire. In the language of dispute resolution, what are the interests that the party needs to have met that is underneath the statements of position he or she is making? This is the question that lawyers and mediators that are good problem solvers focus on. In order to satisfy the real interests and goals of a client, to get a truly meaningful and valuable resolution, we need to gain insight as to what each person’s day in court really means.