Vivian Berger Mediator

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Respect in Mediation
A Counter to Disrespect in the Workplace

Dispute Resolution Journal
November 2008-January 2009

Respect is a universal need. Unfortunately, its opposite, disrespect, can be found in many places of employment, from corporate board rooms to assembly lines. Work plays a central role in the lives of Americans; much of our sense of identity and worth, our self-respect, is determined by how well we are doing at work and how our co-workers and bosses perceive us. Yet, never before in recent years has the job environment been less hospitable to employees. Global competition, deunionization, outsourcing, downsizing, and the continuous march of technology all make for disposable employees. The imperatives of the bottom line and shareholder value have turned the workplace into an insecure pressure cooker. Tensions are exacerbated when employees have to work with colleagues who fail to treat them with respect.

No one can quantify the degree to which disrespect in the workplace has contributed to employment litigation. Although the employer may be justified at times in taking adverse action against the employee, doing so in a manner that the latter perceives as disrespectful needlessly adds insult to injury. Demeaning exit protocols— for example, parading discharged employees out of the office, in full view of their erstwhile colleagues, flanked by security personnel—often produce anger sufficient to fuel a lawsuit. From the employee’s point of view, litigation may be the only means to get the respect he feels is his due. This can be costlier to the employer than any sabotage by departing employees.

Sadly, in most cases, lawsuits represent a “lose-lose” proposition for both sides. Employers spend huge sums on attorneys and endure business disruption. Employees avoid having to pay for legal representation through contingent- fee arrangements (if they are fortunate enough to find a lawyer willing to represent them), but they suffer in more intangible ways. They are usually completely unprepared to endure the emotionally draining litigation process, and they have no concept of how long it can drag on. Even when forewarned by their lawyers, they may find it hard to imagine the stress involved in providing deposition and trial testimony and in having their behavior scrutinized and attacked by opposing counsel.

If after discovery the judge dismisses the complaint, the employee feels disrespected again, this time by the very institution on which he relied for vindication.

Mediation in Lieu of Litigation

While there is no vaccine against the virus of disrespect rampant in many workplaces, particularly in the recessionary times we are now enduring, there is an alternative to the grim litigation scenario — mediation. When held early (ideally, before litigation commences), mediation serves to prevent the phenomenon of “marrying” one’s pain, which can lead an aggrieved employee to devote huge amounts of time and energy to chasing an elusive and illusory justice. Although no panacea for the multiple ills of the legal system, mediation, even when unsuccessful, fulfills the basic duty of doctors — applicable also to lawyers and neutrals — to “do no harm.” When successful, however, mediation affords not only a resolution of a specific dispute on the terms the parties have agreed to and formalized in their settlement document, it also improves the distressed employee’s psychological and spiritual state of mind.

Even mediation late in the day may yield psychological healing; in fact, this may be the real relief for which the aggrieved party is looking. I observed this reaction in a mediation involving an embittered ex-employee who had been pressing his claim for 10 frustrating years. When I asked my client to state his goal for the mediation, he replied: “To regain my emotional wholeness.” He reluctantly settled for a sum he viewed as inadequate, but he did express gratitude that the mediation session had brought “a human side to a bureaucratic and cold [litigation] proceeding.”

What comprises the “humanness” of mediation? Fundamentally, it is respect for the individuals involved. That is what renders it uniquely effective in addressing grievances rooted in feelings of disrespect.

Achieving a voluntary settlement of disputed claims is mediation’s immediate purpose, yet that aim should not be divorced from its other purposes— which, according to the “Model Standards of Conduct for Mediators,” include promoting procedural fairness, self-determination, and mutual respect among the participants. Indeed, procedural fairness and self-determination are largely what make mediation a respectful process. Socalled “transformative mediation” explicitly embraces the norm of respect by focusing less on reaching a settlement than on empowering the parties to rely on their own capacity to solve problems, and helping them to “recognize” each other’s concerns. “Recognition” implies empathy and acknowledgment, two of respect’s major attributes, along with patience, courtesy, attention, and regard for the individual’s inherent dignity as a person. While other schools of mediation practice may place greater emphasis on pragmatic ends (like resolution of the controversy), none worthy of the name “mediation” neglects the human side of the enterprise.

This orientation differs starkly from litigation’s. For one thing, litigation is like a rear-view mirror—it looks backward. From that perspective, it seeks to assess responsibility for past injuries. Communication between the litigants is indirect, conducted only through their attorneys; the parties never speak to each other. Each side’s view of the facts and the law is presented to a judge or jury, and that presentation is burdened by the inhibitions of public speech, evidentiary constraints, and legal rules.

If nothing else, litigation is “bureaucratic and cold” (in the words of my former client) and, as an adversarial proceeding, it encourages mutual demonization and intransigence. The fact that litigation procedures are designed to be “fair” does nothing to alter the fact that the process itself tends to ignore human values, such as selfrespect and respect for others. The people whose interests are at stake cede almost all decisionmaking power to third parties; the litigants become, in effect, mere bystanders, rather than human actors with feelings and thoughts of their own.

By contrast, mediation focuses on making matters right for the future. The parties speak privately in their own voice to a mediator, who moderates or facilitates the negotiations, making no decisions herself. The parties can vent their emotions to the mediator in private caucuses. (They can also do so in a joint session with the other party, but should be coached to refrain from attacking the adversary—a tactic that is unlikely to encourage accommodation.) Mediation puts an aggrieved employee on a par with the employer. The mediator helps the parties understand their own interests as well as others’ and works with both sides to develop potential solutions to their problems.

Because mediation is voluntary, the parties cannot be forced to settle. They alone determine the outcome of the dispute and if they decide to put it behind them, they may agree to any terms not barred by law. Sometimes the parties are able to mend their broken relationship. More often, however, they may come to reinterpret their history in a way that lets good memories prevail over bad ones.

By emphasizing party autonomy and focusing on the litigants’ interests and possible outcomes benefiting both of them, mediation enhances their self-esteem and fosters in each a more respectful attitude toward the other person. The process is, in a word, humane.

The Mediator’s Role in Eliciting Respectful Behavior

At the very least, the mediator should model courtesy in her dealings with the participants. Yet, to create a truly respectful environment, a mediator has to do more than just be polite and hope that the parties and counsel will emulate her example. Rather, at every stage of the proceeding, she must proactively further the participants’ respect for others: i.e., their seeing and treating people according to the Kantian ideal, as ends not means—as worthy of regard solely because of shared humanity. Having good manners is the ornament but hardly the essence of this concept. The mediator should lay the groundwork for respectful behavior at the mediation in pre-mediation conversations with counsel and, at times, the parties. The mediator must also demonstrate respect for the parties and the process by thoroughly preparing for the mediation session. Such advance work signifies a serious purpose and commitment.

Showing respect in mediation has a utilitarian purpose: it can smooth the path toward problem solving. But apart from that function, its intrinsic value makes it worthy of pursuit.

Pre-Mediation Conferences

Many mediators prefer to hold a pre-mediation conference call with the attorneys for both sides to discuss the case. However, it can be more effective to speak to the lawyers separately. Private conversations encourage candor and make it easier to plan for a respectful session. For one thing, the mediator can probe for particular sensitivities on the part of each lawyer and client that might call for special attention. For example, what are the employee’s feelings about his former supervisor? How did the employer’s representative react to the employee’s attorney “beating him up” at his deposition? Has either side not cooperated in discovery, or been verbally abusive, or failed to return counsel’s phone calls, or engaged in other conduct that could lead an adversary to harbor resentment? (Although lawyers should have the professional detachment to set aside such irritants in settlement attempts, some cannot.)

Prior knowledge that one participant feels hostility toward another alerts the mediator to the need to restore respect at the mediation. The only way to uncover these kinds of sore spots is to inquire, and ordinarily this is best done in private, separate conversations with the parties’ lawyers.

Before every mediation session, the mediator must discuss with counsel who should attend; each side has to have a person with full settlement authority present. However, this is also the opportune time for the mediator to stress that those who attend the mediation should display mutual respect. It is an equally good time to find out who should not attend. I usually suggest to the company’s attorney that his client show respectful attention to the employee by sending a high-level corporate officer to the session. I usually ask the employee’s lawyer if there is anybody from the company that his client does, or does not, want there. Sometimes the employer insists on bringing an individual whose presence would greatly upset the worker. There are at least two possible ways the mediator could handle this problem while taking the employee’s feelings into account. One is to forego holding a joint session. The other is to explore how the employee would feel if this person attends the mediation but agrees not to speak at the joint session.

Employees may feel better when they are accompanied to the mediation by an individual who will provide emotional support—typically, a friend or family member. It is important for the mediator to ask if the employee wants to have such a person attend the session. This type of deference to the employee’s emotional needs signals thoughtfulness, one of respect’s many faces. It also serves a practical purpose since without that family member or friend’s input or assent, the employee is likely to refuse to settle. For precisely this reason I have held mediations that included formal or informal spouses, parents, siblings, children and other invitees. In my experience, their presence usually helps, not hurts, the process.

Most important, pre-mediation conversations permit the mediator to coach the attorneys on the appropriate tone for introductory remarks. However, veteran attorneys do not like to be told how to do things. So in order to avoid seeming to patronize them, the mediator can say that she always discusses opening statements the first time she works with a lawyer.

Experienced attorneys generally know that mediation is not the forum in which to try to prove the merits of their client’s position—let alone disparage the complaining party. Nevertheless, some lawyers find it extremely hard to resist the temptation to do so. Thus, during their opening statements they may use loaded terms, like “extortion” and “nuisance value,” to characterize the plaintiff’s case. Less experienced lawyers may use aggressive language to mask insecurity or impress a partner or client, even though doing this can doom the mediation to failure. To head off such unproductive behavior, which would only confirm the employee’s fears that the employer will demean him again, mediators ought to advise refraining from “red flag” language. If counsel takes issue with this recommendation on the ground that his client expects a “forceful” introduction, I emphasize the pragmatic value of showing respect and keeping the atmosphere conducive to settlement.

I also discourage counsel from making run-on remarks because prolixity can be regarded as talking “at,” not “to,” a person. (I learned this to my sorrow after having failed to curtail a one-hour defense jeremiad.)

Coaching lawyers on their opening statements can include suggesting that they find something positive to say about the other party. For instance, the employer’s attorney could say to an employee who was discharged for lateness: “No one has questioned your technical skill.” Moreover, the mediator might mention that counsel will rarely go wrong by distancing himself from critical comments, stressing that he is simply relaying what others have told him, what the record reveals, etc. Counsel could also “bookend” his comments with conciliatory words like: “Notwithstanding the differences in the parties’ positions, we are here to negotiate in good faith.”

In addition, the mediator can recommend to junior litigators, who often adopt a one-size-fitsall approach, that they tailor their opening statements to the case at hand. For example, I once counseled a young lawyer representing the employer to express empathy for the elderly female factory worker who had been laid off after 34 years—three months shy of the level of seniority needed to preserve her job. I generally find that inexperienced lawyers welcome advice on how to show respect for the other side.

Sometimes a represented party may initiate contact with a mediator who is an attorney; ordinarily, it is the employee who does this. Ethical rules governing lawyer conduct permit the mediator to have the ex parte contact with the worker because the mediator is acting not as his counsel, but rather as a neutral facilitator. Nonetheless, as a courtesy, the mediator should inform the employee’s counsel of the communication and her intent to respond. A good way to do so is to acknowledge the employee’s concerns politely and empathetically without discussing the substance of the case. For instance, when I received a long, impassioned letter from a deaf employee, arguing the merits of her claim of disability bias, I wrote her a brief thank-you note stating that we would take up her issues at our session and asking what accommodations she would require in order to participate fully during the meeting. She responded gratefully with specific suggestions, contrasting my inquiry favorably with the company’s perceived neglect of her needs. The restorative process had begun. This anecdote demonstrates that postponing the substantive conversation until the mediation itself does not imply any sort of rejection.

The Joint Session

The joint session is usually the only occasion at which all participants come together. It is the forum in which the mediator must model the respect that she desires the others to emulate. The following techniques may help her to achieve this end.

The mediator always makes an opening statement at the joint session, explaining the process and her role. To avoid seeming to lecture the participants about good behavior, the mediator can try to “educate” them by example instead of words. For instance, she can turn off her cell phone in full view of everybody to tell everyone else tacitly—and tactfully—to do the same.

The mediator should look directly at her auditors as she talks, shifting her gaze from one to another to show attentive concern toward all. Common sense naturally dictates certain exceptions to this practice. For example, if a party to the proceeding is deaf but can lip read, the mediator should face her at all times when speaking, and ask others to do likewise.

If the mediator has reason to anticipate that a participant may become hostile, she can solicit agreement beforehand to observe a “rule of respect”: not raising voices, interrupting, or making unduly personal comments. Should anyone later break this promise, the mediator can invoke the rule to put the miscreant back on track.

While explaining the mediation process, the mediator needs to discuss the private caucus and, in particular, the technique of reality testing. By fully previewing this sensitive aspect of mediation, she can avoid giving unwitting offense to the parties, who may feel that they are being attacked. To emphasize my impartiality, I often say: “I reality test both sides. I am an ‘equal opportunity pest!’” I also stress that I am not trying to substitute my judgment for theirs; rather, I am acting out of deference to their autonomy, to help them to reach their own decisions with the best information and input available. Further, I remind them that mediation, as opposed to litigation, puts them in control, not the mediator or the lawyers. In these ways, I aim from the start to recognize and empower the parties.

During the parties’ opening statements, the mediator should conduct herself as a model of courtesy, setting aside all papers (except for her notepad) and turning her chair, eyes and attention toward the speaker. Most others in the room will follow her lead, but sometimes parties and counsel will whisper to each other, or root through files, or even roll their eyes or smirk. There are limits to what a mediator can do to quell this kind of behavior because a neutral is not a cop. Her role is more an exemplar’s than an enforcer’s, and she must take care to appear impartial. If someone objects to the rudeness, however, she might remind everyone of the need for respect by saying: “We are here to listen to each other.”

Rarely, more pointed intervention may be called for at the joint session. If contemptuous, insulting or obscene language is used by a participant, the mediator has to weigh the benefit of quickly defusing an ugly moment against the risk of embarrassing someone and perhaps being viewed as less than neutral. On the assumption that counsel has thicker skin than his client and higher duties, the mediator might be readier to squelch offensive conduct by a lawyer. For example, in one instance in which defense counsel called the plaintiff, a discharged employee, a liar for allegedly misrepresenting that he had a Ph.D degree, I felt I had to remind counsel about the accurate “ABD” (all but degree) qualifier on the employee’s resume. But the mediator should never tolerate gutter speech or personal attacks because they are likely to destroy a respectful environment for good (as well as the innocent party’s trust in the mediator). If the offender seems genuinely contrite after the mediator intervenes, it may be possible to elicit an apology from him. This may restore the injured person’s self-esteem as well as a positive atmosphere.

Following the joint session, the mediator typically engages in “shuttle diplomacy,” meeting privately with each side as often as necessary. During these caucuses, the mediator maintains a respectful climate by using a vital mediation technique— active listening. A good mediator will patiently hear what the caucusing party has to say, providing both verbal and nonverbal feedback. Other techniques that demonstrate respect are reframing negative statements into constructive communications, probing positions to uncover the interests of the parties, and listening with “the third ear” so as to glean subtle clues to the speakers’ needs and sensitivities. Through these methods the mediator demonstrates that she takes the parties’ concerns seriously and is looking for ways that each one can move toward finding possible solutions to the dispute.

At the start of the first caucus with each side, the mediator can stimulate candid discussion and trust by requesting the caucusing party to talk a bit about himself. This approach shows that the mediator sees the litigants as individuals with their own agendas—not simply as the personification of a problem to be “acted on” by the mediator.

During the initial caucuses, the mediator should also inquire if anyone who has not yet spoken wants to do so and if anyone else wishes to add anything to what has been said previously. These questions evince respect and have the utilitarian goals of eliciting additional potentially useful information as well as building rapport and confidence in the mediator.

Although each matter is unique, there are certain recurring situations in which the mediator ought to try to communicate respect, or eliminate perceptions of disrespect. One situation is when an adversary insults a party in the opening session. If, for whatever reason, the mediator does not address the incident then, she should bring it up in caucus, even if the innocent party does not raise it, because the victim could be obsessing about it silently. I dealt with this problem in a case I mediated between a 65-year-old worker and the employer who terminated him. The plaintiff had found a new job in his area (sales) four months after being discharged; this was record time, given his age. The young attorney who gave the employer’s opening statement castigated the employee for taking a position that paid less than his former salary—thus, ostensibly, failing to properly mitigate his damages. The plaintiff and his wife visibly flinched at this remark. In their eyes, the company had not only tossed the plaintiff away at the end of his career; it had also rubbed salt in his wounds by dismissing his efforts to put his life back in order. I said nothing about the matter in the joint session, but in the private caucus I immediately expressed regret for the lawyer’s comment and noted that, in her youthful zeal, she may have misrepresented the defendant’s stance on mitigation.

My statement was intended to deflect the couple’s resentment from the employer onto the lawyer and to lessen that resentment by attributing her misstep to poor judgment due to inexperience. The point I would like to emphasize is that deep affronts to a party’s pride have to be addressed somehow, although there may be alternative ways of doing so.

Respect and Reactive Devaluation

A less rational but common source of negative emotions, which the mediator must confront, is the bargaining process itself. When a high demand predictably yields a low-ball counter, unsophisticated plaintiffs may feel personally disrespected. (I distinguish this genuine reaction from routine posturing by lawyers who claim to find an offer “insulting.”) In such circumstances, mediators can use a number of strategies.

First, in the initial caucus, the mediator, together with the plaintiff’s counsel, ought to explain the back-and-forth negotiation in which the parties will be engaging. In addition, when the plaintiff expresses dislike of haggling in general or feels belittled by a small offer, the mediator could commiserate by saying: “Many people would feel that way.” The mediator could also distinguish the defendant from the bargaining process by pointing out that negotiating ploys say as much about the negotiator’s personal style as about the employee or his lawsuit. Further, the mediator should attempt to defuse the view that bargaining inherently connotes disrespect by the fashion in which she shapes its progression. One well-known mediation technique that can forestall so-called reactive devaluation (the tendency to consider a suggestion worthless on account of its source) is to make it seem that the proposal came from the mediator, not the adversary. Doing this makes good sense if the overture involves an especially sensitive issue like the employer’s wish to “buy out” a current employee. The mediator should always float that suggestion herself to avoid the employee’s seeing it as the latest sign of contempt: “Now they’re trying to push me out!”

Unusual cases may demand unusual, idiosyncratic solutions. I mediated a case between an African-American woman and the employer who terminated her employment as an office cleaner. The plaintiff was wholly inexperienced in business manners and mores. She was incensed when the employer made an opening four-figure offer, and accused the company of treating her “like a nigger.” My explanation of bargaining tactics made no dent at all in her anger. I finally conceived the idea of having the employer authorize me to deliver a “statement of respect” on its behalf, clarifying that the proffered amount was based solely on its assessment of the legal merits of her lawsuit rather than any lack of esteem for her as a person. As artificial as it may sound, this tactic worked. The statement mollified her considerably, restoring her sense of self-respect.

Thus, when conventional approaches fail to reintroduce respect into the mediation, the mediator should act on her educated instincts and try to propose creative solutions if doing nothing would threaten to worsen existing relations.

Respect and Inflated Expectations

It is often necessary for the mediator to deflate the parties’ overly optimistic expectations. Doing so, however, can subvert the aim of restoring self-esteem. Yet to dwell on the positive alone would undermine party autonomy, which is enhanced by providing the means to ensure informed, thoughtful decisions. While nothing can wholly resolve the inherent tension between “building up” and “tearing down,” there are methods of giving bad news that also impart respect and concern. For example, the mediator might say to the employee: “The worth of your case is not the same as the worth of you.” Even if hindsight reveals that waiting to be dismissed would have materially increased the employee’s prospects of obtaining an award of back pay, the mediator could also say that quitting may have made good sense in the circumstances at the time, in light of the stress the worker was under.

Generally speaking, the mediator should seek non-patronizing ways to stress what each side, and particularly the employee, has accomplished (as opposed to botched): for instance, raising good children as a single mother, bravely adjusting to a disability, returning to college to get a degree, filing the complaint that led to the company’s adopting a sexual harassment policy, and so forth. Such comments validate the employee and can help repair damaged self-respect, even if his lawsuit yields little vindication.

Apologies and Respect

It is well known that an apology serves as a powerful restorative (the more so if spontaneously given). Even when bargained for as a means of smoothing the way to final resolution of a dispute, a graciously delivered apology can be very meaningful. Sticking to the truth enhances the likelihood that the apology will be regarded as sincere. For instance, a manager in the Human Resources Department could voice remorse that she had not contemporaneously explained to the plaintiff why he failed to receive a promotion. The employee’s supervisor could admit using poor judgment in firing the worker in front of his peers. In one case I mediated, the employer’s representative expressed regret for the plaintiff’s belief that the company’s trainer had been biased against him. Although the representative denied the bias allegation, he promised to subsidize the plaintiff’s attendance at a different training program—a move that underlined his good faith.

In sum, an apology, usually coupled with additional terms that satisfy the employee’s key interests, can go a long way toward reinstating his “emotional wholeness.”

Occasionally, too, somebody on the defense side will feel the sting of disrespect and require efforts to defuse this emotion. The employee’s expressions of pain should not obscure the fact that other mediation participants may need succor; after all, businesses and agencies are made up of flesh-and-blood human beings whom the employee may have offended. If unassuaged, this person’s sense of outrage may also present a significant barrier to settlement, especially when he holds a high-ranking position. But even if the dispute could be settled without his approval, the ethos of mediation demands evenhanded concern for the feelings of every participant.

Above all, no one should underestimate the power of an accusation of prejudice to wound its target. I helped to construct a conversation between an African-American employee and her boss after she told him she felt he was showing favoritism to a newly hired white employee and had no choice but to think that race was a motivating factor because she was the only person of color in the office. He was deeply stung by the racism charge. He explained that he was paying the other employee more attention because she was having some problems at work. The complainant said she now understood and begged his pardon for her earlier suspicions. Her boss felt very relieved at the reinstatement of his self-image as a decent, fairminded manager. He then proposed, and she accepted, guidelines to govern their future relationship. The employee’s retraction of her accusation and her subsequent apology, with the boss’s explanation sandwiched between them, plainly allowed for their reconciliation.

Corporate Remedial Efforts

Sadly, the likelihood of such one-on-one reparations fades as disputes turn into lawsuits. Yet certain provisions that appear quite commonly in settlements of claims by dismissed employees respond both to their need for respect and to the imperative of finding a different job. One such term is “retroactive resignation.” It permits a fired worker to be recorded on the company’s books as having departed voluntarily. This type of provision can ease the blow of being discharged. So, too, can a letter of reference stressing the employee’s strong points, where there is something good to be said. (This would require a company whose policy is to confirm a worker’s prior employment without commenting on his performance to make an exception to that policy.) Finally, even if the employee is still on the job, removing disciplinary notations (giving “clean paper”) can satisfy pragmatic as well as dignity interests. The most effective efforts of this type are custom-made for the case at hand. I culled the following examples from matters I have handled.

  • To resolve a disability discrimination complaint, a college sweetened its monetary offer to the plaintiff, who had breast cancer, with the promise to sponsor a yearly “run for the cure” in her name. This proposal prompted the plaintiff to burst into tears— and immediately accept the offer.

  • To settle an age discrimination claim, a very proud elderly man, humiliated by his termination, bargained for several stipulations designed to enhance his self-esteem: resignation in lieu of dismissal, clean paper, a memo to his former colleagues announcing his retirement as of the date that he was fired, and—invented for him solely—a “retiree’s identity card,” which would allow him to access the premises in order to visit his former mates.

  • To settle a racial discrimination in hiring case, a law firm agreed to the attorney-plaintiff’s demand that it write a check to the NAACP made out in the name of the senior partner.

  • In consideration for the withdrawal of a sex discrimination charge, the army agreed to provide the complainant with a commendation presented by a general who highly valued her contributions. The military’s singular setting enabled her to negotiate that rarest of prizes, an expression of respect that she could frame and hang on the wall for all to see.

Regrettably, the formal settlement document often contains provisions that, singly or in tandem, subvert the mutual respect that the mediator has gone out of her way to create. This result occurs because the formal paperwork is generally prepared by defense counsel, who invariably includes a no-rehire stipulation, as well as non-disparagement and confidentiality clauses. Although the company has good reasons for insisting on these protections, it often automatically rejects requests by the plaintiff’s attorney to make them mutual— and its reasons for doing so are less compelling. Fortunately, the mediator can offer specific recommendations to deal with boilerplate imbalances that injure a party’s sense of dignity. For example, she might advise adopting language stating that the firm is responsible only for the acts of a few named individuals, and solely during their tenure at the firm. (This limitation avoids the potential for broad liability in the event of a slipup by any one of the company’s many agents.)

By making herself available to assist with such last-minute issues, the mediator can help ensure that the mediation’s redemptive powers outlast the mediation itself.