San Francisco Employment Law Firm Blog

Few wrongful termination, harassment, and discrimination cases are "clear cut." No matter how strong the evidence of unlawful conduct by the employer is in the hands of the aggrieved employee, the employer always has its own side to the story, which usually says "We did nothing wrong, and the plaintiff is lying." No employment case is perfect, and every case has its strengths and weaknesses.

One of the most important elements of any civil case, especially wrongful termination cases is maintaining your credibility as a claimant. Being credible usually means relying on facts rather than on unsupported beliefs and speculation, not lying and not exaggerating. The less commonly mentioned by equally important element of credibility, which plays a crucial role during your testimony is accepting responsibility for something that you have done wrong while working for the employer-defendant. Here is a classic example: suppose you were an outstanding employee with numerous awards for your performance and promotions, but like everyone else - you were not perfect, and a few suggestions were made to you as to how you could improve your performance throughout your tenure with the company. The employer's attorney chooses to focus on that specific issue during your testimony at the deposition or at trial, going over and over something relatively insignificant and belaboring the issue in part in order to destabilize your emotionally. It is very important that instead of getting angry and defensive, or justifying the common deficiencies in your performance, you accept at least some responsibility and admit that certainly things could have been done better by you. This will allow you to impress both the attorney, the judge and the jury, and send a strong message that not only you are a level-headed rational individual, but you are also responsible, recognize your mistakes when you make them and you deserve even more sympathy than you otherwise would.

Yesterday, I attended my client's mediation at EEOC (Equal Employment Opportunity Commission) office in San Francisco. In many ways, the proceedings were very similar to a typical private mediation of an employment case. However, I thought there were a few important advantages, at least in this particular case, over private mediation.

1. The EEOC mediation service is free. Mediation can be an expensive proceeding. Some of the mediators in the Bay Area who are know to be effective in resolving employment cases charge between $5,000 and $7,000 per day for their services. While paying half of this fee may be worthwhile for the Plaintiff, some employers use this expense as an additional way to pressure Plaintiff into settlement. They realize that consciously or subconsciously, the employee and his/her counsel who are naturally are not as well funded as the employer will want to make their expense worthwhile and would be more frustrated if the case doesn't settle at the end of the day, which means the aggrieved employee and his/her lawyer will likely be more flexible and amenable to a lower settlement. When the mediation is free, Plaintiff is under no pressure to accept settlement offer which seems to be clearly not fair.

2. At least some EEOC mediators seem to insist on a joint session before separating the parties into different rooms. Many private mediators believe that traditional join sessions, where both parties, their counsel and the mediator sit together and talk about the case are counter-productive and are more likely to hurt and help the process. While this might be true, especially if either of the parties or both or angry and each other and have a hard time communicating with each other without losing their temper, if respectful discussion is possible and the employee can keep his emotions under control, joint session should definitely be taken advantage of. First, it saves a lot of time, allowing both parties to nail down the main issues in their case and immediately see where the opposite side stands on the same issue. Some of the factual disputes, discrepancies and misunderstandings about the events that lead to the EEOC complaint can be resolved right then and there. Further, if the employer is represented by someone who has never met the aggrieved employee, it shows both parties the actual "human" side of the opposing party. This is especially helpful if the employer's representative and the employee are calm and likable people, who are able to respect the difference in opinion when looking at the same issue from a different angle, which is very common in most motive-related cases, such as discrimination and retaliation.

3. EEOC Mediators are Experienced Employment Law Attorneys. Employment law is a highly specialized and constantly evolving area of law. A mediator who doesn't know employment law, who doesn't have experience working on either side of the wrongful termination claims, and who doesn't keep up with the employment law developments is not going to be nearly as persuasive in trying to bring both parties to a compromise. EEOC seems to be quite picky when it comes to mediators, and the ones I had an opportunity to work with are quite competent.