winner takes allIn an employment case one party may be in a much better negotiating position than the other. The weaker party may face a good possibility of failure if a case goes to trial, but often decides to fight on despite long odds. How can such a situation be resolved?

The authors of the study “The Slippery Slope of Concession” conclude the weaker party can use small concessions to appease the other side if there is a combination of common knowledge and a common preference for the amount of time to give an issue.

  • Conflict can only be avoided if the parties agree the end of conflict is preferable to its continuation.
  • A key factor in the ending or continuing of conflict is how much more impatient the stronger party is compared to the weaker party. If the stronger party is much more impatient, he must receive a large concession immediately to avoid conflict. Such a concession may lead to another demand for a large concession. While the more patient, weaker party may be willing to make small concessions, he will not wish to make a series of large concessions.
  • If what’s at issue cannot be divided up or allocated it can also impede a mutually agreeable outcome. In order to find a concession that will be agreed to by both sides, it must be large enough to please the winner, but small enough to satisfy the loser. In an “all or nothing” situation, the weaker party may prefer conflict over capitulation.

Employment cases can have weaker parties on both sides.  The employer may have an interest in a drawn out battle to retain resources for as long as possible and try to outlast the plaintiff.  On the other hand, the plaintiff may recognize that it doesn’t have to spend as much as quickly as the defense.  In other words, the litigation may be more expensive for the defense than the plaintiff.  Although the plaintiff may have less resources, it also expends less resources to prosecute the case.

In employment cases usually what’s at issue is money and how much the plaintiff should get. It’s easy to allocate or divide an amount of money, the difficult part is getting the parties to agree to an amount and getting the parties to overcome the emotional hurdles connected with the case.

The plaintiff may also seek a nonmonetary recovery, such as a job recommendation, an admission of guilt or fault. Ex-employers are usually loathe to admit any fault or wrongdoing, so if the plaintiff feels strong enough about getting such an admission and if the language of an ex-employer’s statement can’t be finessed to both parties’ satisfaction, this could be an “all or nothing” obstacle to resolution.

There are many obstacles to negotiating employment settlements.  Understanding who may be the weaker party and how they might seek to make concessions might help to better resolve the case during mediation.