Former judge Mary S. McClatchey presided over and successfully mediated hundreds of federal and state employment law and civil rights claims during her fifteen-year judicial career. She is experienced in both facilitative and evaluative approaches to mediation.
Judge McClatchey was praised by attorneys and litigants for her sense of fairness, preparation, and patience in assuring all parties are heard. She continues her mediation practice today, limited exclusively to the area of employment and civil rights.
Mediation: Our Approach
Judge McClatchey understands the unique emotional component of employment law disputes. She therefore starts the mediation process by meeting with each party and their counsel to discuss their world view of the case. Through experience, she knows that this initial phase of assuring each party feels heard and understood is the foundation for a successful settlement process.
She then identifies and reviews all relevant evidence, performs expedited informal discovery when necessary, and discusses the strengths and weaknesses of the case with each party and counsel. After an exchange of Settlement Statements, the Settlement Conference is held, during which she caucuses with each party separately. The focus of this meeting is to steer the parties towards future interests and away from past events and hardened positions. Her proven track record of successful mediations is a testament to this process.
Mediation of ADA Interactive Process
Engaging in the interactive process to determine a reasonable accommodation that is compliant with the ADA often presents complex legal and organizational challenges. These can include information deficits, confidentiality concerns, fractious work team dynamics, a history of performance or communication problems, and supervisory shortfalls. Further, the case law in this area is still developing and is often inconsistent, providing little guidance.
Judge McClatchey facilitates the interactive process for the parties by coordinating with treatment providers, parties, supervisors, HR, and counsel, to mediate a thorough, collaborative, and compliant process. The result is a mediated reasonable accommodation agreement that can be modified as needed over time, and will often include a phased return-to-work component.
In cases involving complex mental health diagnoses that lack an appropriate treatment plan and/or case management, we partner with the mental health experts at BizPsych of MINES & Associates. This integrated approach assures that no time is wasted in getting employees back to wellness and full productivity quickly.
Neutral Case Evaluation
Neutral case evaluation (NCE) is an increasingly popular, low-cost means of resolving cases very early in the litigation process. It can also be a useful way for one party to obtain an in-depth, judicial perspective on the strengths and weaknesses of a case. The virtue of NCE is that it provides a well-informed, neutral and nonbinding advisory opinion about how the case is likely to turn out so that the parties can move forward quickly to an appropriate settlement. Judge McClatchey provides two types of NCE:
1. Both parties jointly retain Judge McClatchey to receive and study legal briefs and key evidence in the case. If the parties desire, they may set an evaluation meeting at which they present oral argument on claims, defenses, damages, and any other issues to Judge McClatchey. The rules of evidence do not apply. However, all elements of the NCE process are confidential. Judge McClatchey then delivers a detailed nonbinding evaluation, oral or written, at the parties’ discretion, of how the matter is likely to be decided if it proceeds to arbitration or trial. After each party has had the opportunity to discuss the evaluation with important decision-makers, they can undertake settlement negotiations or mediation on an unassisted basis, or by utilizing Judge McClatchey as the facilitator.
2. Individual counsel may retain Judge McClatchey to provide a neutral case evaluation of employment law matters that are more complex in nature, or that may involve a client that holds an unrealistic opinion of the value of the case. These early case evaluations may be used for case management, trial strategy, and settlement strategy.
Judge McClatchey can also come on-site to provide facilitative dispute resolution and mediation services for conflicts that have not yet reached the litigation stage. In these situations, her approach is a facilitative one, designed to help the parties design and guide the mediation process so that they can generate their own solutions. She starts by helping the parties identify the root causes of the problem, with an understanding that there are many potential catalysts for workplace disputes. Among these are: information deficits such as insufficient training and education on how to perform a job; bringing problems from home to the worksite; a history of miscommunication or lack of effective communication; differences of opinion on how work should be performed; and poor performance management, just to name a few.
Once the root causes and issues have been identified, Judge McClatchey assists the parties in establishing a road map for problem solving, and for repairing the work relationship. Often, this dispute resolution process will be followed up with ongoing coaching for a designated period.