Q&A with Mediator Robert Dulberg
Whether you have filed charges with the Equal Employment Opportunity Commission, a complaint with the Florida Commission on Human Relations, in the middle of litigation, or set for trial, you may be invited to mediate your case. Once litigation has started, a judge might even order the parties to attend mediation. Renowned mediator Robert A. Dulberg from the alternative dispute resolution firm Salmon & Dulberg Dispute Resolution agreed to answer a few questions for us and share his advice on preparing for and attending mediation. Mr. Dulberg has mediated over 7,000 cases and is one of the most respected mediators in the South Florida legal community known for helping parties settle their cases.
Q: Do you think there are any instances in which mediation would not be beneficial in a sexual harassment or discrimination case?
A: I don’t think there are instances where mediation would not be beneficial, although obviously mediation won’t be successful in every case. However, there are some special considerations for sexual harassment or discrimination cases. For example, the parties may want to forego a joint session, especially if the employer’s representative is the party who allegedly harassed or discriminated. The attorneys can present their opening without their client present if it would create unnecessary discomfort for the employee. Other than that, I see no reason why these cases cannot be mediated and I have, in fact, mediated many discrimination cases. Among the advantages are: it’s an opportunity for the “victim” to express his or her concerns, and for the employer to resolve the situation in a confidential setting.
Q: Do you think mediation is more beneficial before or after a complaint is filed in court?
A: I’m not sure that it’s true for every case, but frequently, mediation is more beneficial before the complaint is filed. For one thing, the attorneys’ fees and costs will likely be considerably less than after the parties have been litigating for a while. Additionally, the complaint and any ongoing litigation may create a situation where the parties’ positions have hardened and they are more invested in the litigation. That said, there are instances where it is necessary to file the complaint, e.g. where there is a need for a temporary injunction, or where some limited discovery needs to occur before the parties can make informed decisions.
Q: What do think is the biggest sticking point that often leads to impasse during mediation?
A: Reaching a resolution in mediation requires a commitment: to listen and learn, to be patient, and recognize that all parties’ interests have to be accommodated in order to achieve a mutually acceptable resolution. Being impatient can be a reason for an impasse. Another sticking point is where the parties have not adequately prepared or obtained necessary information to make a decision. As a sidelight, not having parties with adequate authority is another reason for an impasse.
Q: What do you see as the biggest mistake parties make during mediation?
A: I’ll start with the biggest mistake parties make before mediation: failure to prepare. During mediation, I think the biggest mistake parties make is not being willing to commit to negotiating until there is no further movement. I would prefer, as a mediator, to be criticized for trying too hard as opposed to giving up too easily. I always try to keep the parties talking. It’s also a frequent mistake for parties to show up without adequate authority to settle the case.
Q: What are your top 3 pieces of advice for individuals planning to go to mediation, either with or without an attorney?
A: (1) Prepare your presentation and your response to the other side’s presentation. (2) Manage your expectations. Remember both sides’ interests have to be accommodated, be realistic.(3) Read Getting to Yes by Roger Fisher, William Ury, and Bruce Patton.