Interview with Amanda Gamblin
Amanda Gamblin offers practical advice for the unique employment issues that arise in the technology, construction and maritime industries. Amanda represents employers in litigation, arbitration and mediation. Amanda has litigated large, complex class actions including wage and hour, race discrimination and Title III ADA disability cases in the construction and transportation industries. She is known for creative strategies that lead to business-oriented solutions.
GB- How often do you have cases that involve mediation?
AG- Oh, [they all] involve mediation these days. Sometimes if the mediation is pre-litigation or it is a smaller case, the attorneys will do it themselves. For big dollar cases, we’re going to use a mediator.
GB- What qualities do you look for in a mediator?
AG- I don’t have a mediator that I use for every case. How I choose a mediator depends on the personalities of the case—the lawyers’ personalities and the parties’ personalities.
Here are several types of mediations scenarios:
- If either of the parties have unrealistic expectations and they aren’t responding to their attorney’s advice, then a strong no nonsense mediator can be helpful.
- Analytical personalities respond will to a mediator who will use equations and spreadsheets and talk about the allocation of risk.
If one party is very emotional, it can help to have a mediator that is a good listener and can help that party feel as though he or she has had their day in court.
So how I choose the mediator really depends on the needs of the case. Of all of the different mediation scenarios, I haven’t had anyone who has displayed the full range of capabilities. We needed touchy-feely in the mediation I did with Gregg and he did it remarkably well. I haven’t used him in the types of cases where I needed an analytical or a tough approach.
GB- How strongly do you push to have a mediator you propose be accepted by the other side?
AG- Never. I mostly do defense work. I allow the plaintiff to suggest the mediators. I’ll make it a conversation. I ask the plaintiff to make the first proposal, and they give me a list of potential mediators. Unless it’s a mediator that I’ve had a bad experience with, I will go with the plaintiff’s recommendation. There are mediators I won’t work with and if they show up on the list I will just pick another one.
GB- How important is pre-session communication.
AG- Hugely important. You only want to go to mediation if you feel that there is a shot. Particularly in pre-litigation mediations, it can be difficult to settle the case because the parties are still angry and are not yet weary of the litigation process. It is vital to have at least one call with the mediator and several with opposing counsel to ensure the parties are serious about settling the case. Mediation tends to be easier when the parties do some discovery and take some depositions. Then the parties can get a realistic overall picture of the case. And the parties become frustrated with the time and expenses of the litigation process and so that’s when everyone seems to be more amenable to resolution.
Often, if the mediation fails, the mediator feels like he or she has failed. But usually the mediator didn’t fail; the mediation wasn’t yet ripe for settlement.
GB- How important is it for the mediator to follow up if the mediation doesn’t result in a settlement?
AG- Hugely important. If the mediator is willing to stay involved, then the mediation tends to settle within a few weeks afterward. Although sometimes when you walk out knowing there is no possibility of settlement, I don’t expect the mediator to follow up.
GB- What ADR topics would you like to see discussed at an ADR-related CLE?
AG-Early on in my career, I went to a few CLEs on mediation and I didn’t learn anything. I was a new lawyer and didn’t know anything about the art of negotiation and wanted to get a feel for it.
The CLEs ended up being about the obvious stuff. People were not willing to talk about their genuine experience: tips and strategies. For example, if the mediator proposes a bracket, then how do I use it to my strategic advantage. No one’s going to tell you that.
NOTE: Amanda Gamblin has a reputation for exploring new ways of making HR a strategic partner for their companies, rather than a compliance cost-center. Currently, she’s exploring outsourcing traditional functions of the HR departments leaving only the strategic thought side of HR in-house.
AG- I’m a labor and employment lawyer for businesses primarily in the construction, technology, and maritime industries. While I litigate cases when the employment relationship breaks down, my primary focus is on preventing that breakdown in the first place through strategic incentives for employees coupled with strategic protections for my clients. My goal is to help my client achieve maximum business value before my client decides to sell, go public, or transfer ownership to family or employees.
One of the recent explorations my clients and I are embarking on is: Why have an HR department? Companies over time tend to develop fat HR departments that are not aligned with the strategic goals of the company. A changing trend is to outsource HR, particularly payroll, benefits, FMLA tracking, I-9 compliance, etc.; and then have a small strategic thought department led by a Chief Human Resource Officer. Having a strategy-focused and creative HR Department in place would mean companies could shift their HR focus from filling out forms and tracking data to keeping people happy and exploring ways to make personnel more productive. If the focus is on employees as resources who bring the company value, then the result is a better company culture. And happy people tend not to sue companies. This is particularly true for entrepreneurial and fast growing companies who hate the idea of HR and want to focus on what their employees are good at. It’s been fun to explore the possibilities of a redirected focus for HR.
For more information about Amanda Gamblin go to the Schwabe website.