The Mediation Table: Conversations in Conflict Resolution
Employment mediation continues to evolve—driven by rising emotional complexity, changing workplace dynamics and new legal challenges. In this podcast episode, JAMS neutrals, Donna Marie Melby, Esq., Stephen P. Sonnenberg, Esq. and Gary Fowler, Esq. share their perspectives on resolving today's most complex employment disputes through effective mediation strategies.
Together, they explore:
- Common emotional triggers in employment disputes
- The role of the mediator in high-stress situations
- Trends in discrimination, retaliation and restrictive covenant claims
- How attorneys and clients can set the stage for a successful mediation
Whether you represent employers, employees or mediate these matters yourself, this episode offers tactical insight into resolving employment conflicts in an increasingly high-stakes environment.
Key Takeaways:
- Emotional complexity as a mediation driver: The panelists discuss how power imbalances, reputation damage, and misunderstandings of legal complexity can heighten emotions for both employees and employers. From anger and anxiety to reputational harm, recognizing and managing these emotions is critical to successful resolution.
- Regional and legal trends: New and growing claims include pregnancy and disability discrimination, retaliation tied to leave laws, and a nationwide shift away from noncompete agreements toward trade secret enforcement, especially in states like California and Texas.
- Mediator's role in high-stakes conflict: With experience in both law and psychotherapy, Sonnenberg emphasizes the importance of acknowledging emotions without becoming a therapist. Fowler and Melby elaborate on how mediators can create space for participants to feel heard—sometimes through joint sessions, but more often through strategic pre-mediation calls.
- Preparation and process: All three neutrals stress the importance of individual pre-session calls to identify emotional dynamics, set expectations, and provide clarity—especially for employees new to the mediation process. These conversations also give counsel the chance to share confidential context that can shape the mediation strategy.
- Common pitfalls and productive strategies: Missteps like demanding apologies, legal minimization, or failing to bring the right decision-makers to the table can derail progress. Instead, neutrals recommend storytelling, future-focused reframing, and ensuring that clients come with a realistic understanding of likely outcomes.
Moderator (00:03): Welcome to a special podcast series from JAMS: The Mediation Table, Conversations and Conflict Resolution. This series focuses exclusively on mediation, exploring key issues, strategies and best practices with leading JAMS neutrals and industry professionals. Today, we're discussing the emotions, strategies and trends in employment mediation. Joining us are three JAMS neutrals, each bringing decades of experience in employment law, which they've integrated into their national mediation practices. Donna Marie Melby, who's joining us today from California, Stephen Sonnenberg, a former licensed psychotherapist joining us from New York and Gary Fowler, who's joining us from Texas. So excited to have three parts of the country represented today in this conversation. Donna, Stephen, and Gary, welcome to the podcast.
Stephen Sonenberg (00:57): Thanks very much for having us.
Donna Marie Melby (00:59): Thank you. It's a pleasure to be with you this morning.
Gary Fowler (01:01): Thank you.
Moderator (01:02): You know, employment law is such a fast-moving area. There's constant development, so I'm really pleased that we're doing this podcast and pleased that you three will be doing a webinar this fall where you'll be exploring some of these issues in more depth, but here we just want to give a little taste of what folks can expect in that webinar. So, Stephen, if you can start us off, what kind of disputes are you seeing these days and what's driving them?
Stephen Sonnenberg (01:37): It seems that in the last year or year and a half, I've seen a number of pregnancy and disability-based discrimination and accommodation claims. I've always seen those, but the last year or two have really increased in frequency for me at least. They seem to go hand in hand with another very common type of employment claim, namely retaliation claims. Sometimes, those retaliation claims are grounded on the employees exercising their right to request and to take leaves. Sometimes they're grounded on a protest or alleged protected activity. Connected with the request for or the taking of those accommodations or those leaves. Now, maybe it's related to the Pregnant Workers Fairness Act that came to take place in 2023 and perhaps also the EEOC regulations under that Act which came out in 2024. That may have kind of heightened awareness of some of these areas within the last year or two.
Moderator (02:56): Donna, what have you been seeing from your end?
Donna Marie Melby (02:58): Well, I want to echo some of what Steve said. I think he's, of course, in New York, I'm in California, so we're 3000 miles apart in terms of the claims that are made in New York and made in California. We both handle matters across the country, and I think I would say that we're seeing in California some of the very same kinds of problems that Steve described. In addition, something that I'm seeing, often, is trade secrets claims, employee rating claims and very often these involve executive level kind of disputes. I seem to sense an uptick in those kinds of claims and of course the restrictive covenant claims that often accompany those and breach of fiduciary duty claims... I'm seeing lots and lots of those.
Moderator (04:09): Gary, do you want to add to that list?
Gary Fowler (04:11): I do quite a bit of, just to build on part of what Donna said, I do departing employee cases, restricted covenants and trade secrets on a national basis within Texas and out. And of course, one trend in that area has been that the rise of states are becoming increasingly restrictive on permitting covenants not to compete. That's caused a shift in that area to focusing more on trade secret issues and contractual issues that may not quite reach the prohibition level that many states are now enacting, California being one of the more extreme ones in the sense of generally prohibiting covenants not to compete in employee context, but other states are adopting significant restrictions. Another area that, like what Steve said, has been with us but continues to grow is wage and hour litigation. And wage and hour litigation, while the individual claims are small...when multiplied through the device of either a collective or a class action, those claims can result in huge amounts of controversy that are at stake when we work with our attorneys and their clients to resolve cases.
Moderator (05:30): It sounds like there is no shortage of employment disputes today, but I want to talk a little bit about what makes employment disputes more challenging, in many cases, to settle than other kinds of disputes. Stephen, would you want to start us off?
Stephen Sonnenberg (05:43): Sure. You know, I think about parties coming to a mediation. Sometimes it's before a complaint has been filed or an administrative charge has been filed or submitted and sometimes it can be after years of litigation. I think there are things in common no matter when the parties reach mediation. They bring with them evidence, arguments and absolutely... emotions, sometimes strong emotions. Powerful. One thing I'd say about them is that they're definitely not one size fits all and so from a mediator's perspective, I'm always thinking about that each mediation's different and the emotions that people bring with them into that particular mediation are not one size fits all. What do I mean by that? The same type of conflict in a workplace may cause one person to feel anxious and depressed, but it may cause another person to feel very angry and outraged and it may cause a third person to not have much of a substantial reaction. So, from a mediator's perspective, I'm taking all this in and at the right time and in the right way, I try to address the ways in which these emotions, sometimes these powerful emotions on everybody's part, may make it more difficult to resolve the dispute. I do want to say that doesn't mean, and I say this as a prior psychotherapist, that the mediator acts as a psychotherapist. I think that mediation and psychotherapy do address the ways in which individuals feel and the ways in which they think and the ways in which they make decisions, but the processes are really different.
Moderator (07:43): Gary, any observations you would make about the role that emotions play and how that changes the likelihood of a successful resolution?
Gary Fowler (07:50): Emotions play a key role in mediation and part of that is, as Steve talked about, is recognizing those and addressing them. Part of that process can be through a joint session. Obviously one reason why we've gotten away from that is that the joint session often increased the emotional feelings in the case. So, I think we need to be careful when we do joint sessions but there can be instances where it's very important, particularly on the employee side of the case, for the employee to feel that they have been heard by the employer. One way that can be addressed is talking with the attorneys, sometimes with the clients included, too, in pre-session calls to address whether this is the type of case where a joint session may facilitate the mediation by addressing emotions and allowing them to be expressed or if it's the case where that's only going to be counterproductive.
Moderator (08:55): So, the process can play a big role in regulating emotions in these disputes.
Gary Fowler (09:02): Exactly.
Moderator (09:03): Donna, what are some of the most common emotional undercurrents you see in these disputes from the employee and employer sides?
Donna Marie Melby (09:08): Well, first, let me say, I couldn't agree more with everything that's been said. What we see in these employment mediations that make them so unique is you mostly have power imbalances that become very important to take into consideration as mediator in these cases. You have the confidentiality issues that are almost always of paramount importance.
Very often the goals of the employer and the employee are disparate. They're just different. There's some legal complexity to many of these claims because, when we talk about employment law, we're talking about a large array of different kinds of claims, and in connection with that legal potential complexity, you have the special challenge of dealing with individuals who not only are deeply emotionally involved, but who don't quite understand the law that plays a big role in considering resolution of the case. So, how that is handled has really big impact on whether or not the case resolves because too much reliance on the straight legal analysis can really impact the employee in a negative way and possibly even in the employer side as well.
Supervisors are also emotionally impacted, perhaps in some cases in a different way, but I think too often it's forgotten that with employment law and the kinds of allegations that are made. Before people come to a mediation, they maybe have had to all deal with some really adverse press. I remember, in particular, a case where a supervisor was distraught because his children had read in a newspaper...and their classmates at school had read in the same newspaper that this supervisor was alleged to have used the "N word." Any situation where that gets revealed is always bad, always emotional. And this particular supervisor said, "I never said that but now my children are ostracized at school... my reputation has been ruined." He broke down in the pre-mediation conference and in the mediation. It is I think critical to remember that as emotional as these cases always are for the employee, and the power dynamics that are involved, it's very often the case that those kinds of high stakes emotions are impacting individuals who are on the employer side of the dispute, sometimes in a very personal and a very real way that make these kinds of cases, especially delicate in terms of the way to go about reaching a resolution.
Stephen Sonnenberg (13:06): I want to follow up on something that both Donna and Gary are talking about...these intense emotions on everybody's part, often is the case, and how a mediator deals with that. I mentioned earlier that a mediator is not a psychotherapist and shouldn't be. The problem with real strong emotions within a mediation and a negotiation is that they can interfere with thinking and how somebody's processing all the information that they're trying to take in during the course of the mediation. The best thing I know of to do is to recognize them, acknowledge them, say it out loud and note that there are a whole bunch of other factors that it's important to also attend to.
Moderator (13:55): I want to talk a little bit about process issues that make-or-break mediation. Gary, what are some of the things that set a mediation session up for success? What can lawyers and clients do to prepare?
Gary Fowler (14:06): I think one of the most fundamental things that should be done before every mediation unless impossible to do so, due to time, is to have a pre-session call. Pre-session calls are important in addressing issues because once they're discussed, say six to seven days before the mediation, or three to four, that gives time for the parties to address them. Some mediators will do pre-session calls with both attorneys. I tend to do pre-session calls individually with each side. Sometimes attorneys want their clients to participate, and I think that can be very useful, particularly on the employee side because the employer, in many cases, has had many prior mediations. For the employee, this is likely to be a whole new process for them, and at least recently... one mediation I had, that was important because it made the employee feel much more comfortable about the mediation process and what would happen because those concerns were addressed in the pre-session call. She came to the mediation much more focused on resolving the dispute and going forward. On the other hand, sometimes it's very useful, generally useful to do it only with attorneys. Attorneys can be more candid when their clients are not on the line. Sometimes attorneys, almost in a priest/confessor type role, will confess that they're having client control issues or that they feel that their client has unrealistic expectations of what resolution may look like. This provides an opportunity for the attorney to enlist the assistance of the mediator in dealing with the emotions and with those expectations.
Moderator (16:04): Donna, what process issues are the most important to you?
Donna Marie Melby (16:09): I couldn't agree more about pre-session mediations. I can't think of a case where that is not helpful. As a lawyer, I almost always ask for a pre-session mediation if it wasn't suggested by the mediator. Most times, in the employment context, I wanted to speak with the mediator alone as the lawyer in the case. Now, as mediator, it's my general approach that unless counsel have asked for a joint session, I like to do conversations with each side separately because there are sometimes things that counsel will share that they wouldn't be comfortable sharing in a joint situation. And sometimes they'll say to me, "I don't want to yet share this with the other side. Maybe I will at some point during the mediation, but we're asking that you please keep this confidential for now until the right time that it shouldn't be confidential." I find it very helpful and very often I learn things during those separate pre-mediation sessions that I might not learn in the mediation itself, and that helps me better prepare for a mediation.
Moderator (17:44): What tends to be productive and counterproductive in these emotionally complex mediations?
Donna Marie Melby (17:48): Counterproductive would include things like ignoring the fact that the power dynamics that almost always exist in these kinds of disputes. Demanding forgiveness or an apology very often tends to be a sticking point. Legal arguments can sometimes be used to minimize the positions or at least be perceived that way by one side or the other, dismissiveness of something that even perhaps deserves that kind of treatment, but really will interfere with the resolution process if it is perceived as dismissiveness, by one side or the other.
Moderator (18:43): Stephen, you want to jump in on some of those counterproductive and productive steps in emotionally complex mediations?
Stephen Sonnenberg (18:52): Sure. One thing that I really value during the mediation itself is hearing a story. When I say, "a story," I'm not talking about fiction. Certainly, the law is real important. The facts are real important, but if this doesn't get resolved during the mediation, it's probably going to move forward with litigation, whether it's in a court or arbitration or perhaps some administrative procedures. That's going to be in front of a judge, an arbitrator, a hearing officer or a jury. One thing that all of those categories have in common is that it's people, it's humans. Jury trials, it's a story. Judges, it's a story. What's the story of your case? And during the course of the session, I'm going to be listening not only with respect to the law and the facts, but how it's crafted into a story. Again, not fiction. To the extent that the attorneys and their clients can tell me about that, it'll help me to understand how it's going to resonate with the fact finder down the line if it doesn't get resolved at mediation, and maybe I can give some feedback about how well or not well it's likely to resonate during the course of the session. One question I like to ask, not in the beginning, but often in the second half of the mediation is, "If you were no longer involved in this conflict that brought you here today? What would you do with your time and with your energy?" It's a future-focused question, and I like to point out that neither time nor energy are limitless. They are really precious commodities, whether they're as precious to particular individuals as money or a sense of justice or perhaps retribution or vindication. Those are all things worth considering in the mediation. I do like to find out what an individual would do with their time and their energy if they weren't involved in this litigation or pre-litigation dispute.
Moderator (21:24): Fascinating question. I want to end on sort of a round robin question. It's been a fascinating conversation. In these emotionally charged disputes, if you could give one important takeaway to legal counsel and to the parties themselves, what would it be? Donna, do you want to kick us off?
Donna Marie Melby (21:46): I would say preparation, patience, understanding and some knowledge of the law. When I say preparation, I mean not just preparation with the briefs and the law, but preparation of clients for what's ahead...how the mediation will go and what to expect.
Gary Fowler (22:14): I would say use your pre-session calls, enlist your mediator to address the emotions and any unrealistic expectations, whether on the employer side or the employee. Employers often have an unrealistic view of cases, too. In fact, if both parties didn't have an unrealistic view they probably would've already settled the case. On the employer side, particularly, I think it's most important to bring the representative, who has the true authority to settle the case. It's incredibly frustrating when the parties are 20,000 apart and all of a sudden need to involve somebody who hasn't participated all day in the mediation to get that last 20,000 when everybody who's attended the mediation has come to the conclusion that's the right number. So, you not only need the person with true authority but also I would urge employers to bring a person who is objective. As Donna alluded to earlier, employees often... the representative, who is an employee themselves, may have strong emotions about the case.
The employer has an opportunity to bring somebody who can lend objectivity to the process and to the employer's decision whether or not to resolve the case. That person often isn't the supervisor who made the decision or the in-house counsel who okayed it, but maybe another senior level executive employee with authority who's in a different department and who wasn't involved in the underlying facts.
Stephen Sonnenberg (23:56): To counsel: try to educate me about your client, either before or during the mediation. Perhaps, it's a conversation in another room, perhaps it's a conversation during a break or perhaps it's just a conversation when everybody's present in your room, but clue me in as to what you think is really important to your client, whether there's a particular dynamic present that is influencing your client's approach and don't hesitate to tell me what type of an approach on my part may be effective or maybe ineffective. Don't worry about whether or not I'm going to appreciate or not appreciate or like or not like what you tell me. I will appreciate it. I may not always be able to follow the advice that I've been given from counsel about how to approach the client, but I'm always going to be interested in your input.
Moderator (24:59): Stephen, Gary, Donna, thank you so much. I think we've heard a lot today about the changing nature of employment claims. We've heard about the importance of process and how process can really lower sometimes the emotional intensity of these claims. And we've really heard about the complexity of emotions. Not everybody brings the same emotions to the process. Most people though, want to be heard in their claims – very important to sort of acknowledge that those emotions are happening. At the end of the day, mediation is not psychotherapy as Stephen so eloquently put. Lots of interesting takeaways. In good news for our listeners, these three will be back for a fall webinar on Tuesday, September 30th, at 9:00 AM PST. That's 11:00 AM Central Standard Time and 12:00 PM Eastern Standard Time. Gary, Stephen and Donna, thank you so much.
Stephen Sonnenberg (26:06): Thank you.
Donna Marie Melby (26:07): Thank you.
Moderator (26:08): You've been listening to a podcast from JAMS, the world's largest private, alternative dispute resolution provider. Our guests have been JAMS neutrals, Donna Marie Melby, Stephen Sonnenberg and Gary Fowler. For more information about JAMS, please visit www.jamsadr.com and be sure to subscribe or follow wherever you get your podcasts, to continue learning valuable strategies and insights from some of the most respected neutrals in dispute resolution. Thank you for listening to this podcast from JAMS.
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