Legal Mediation - The Briefs

Legal Mediation – The Briefs

The goal of mediation was to find some middle ground on which I, HomeFirst, and the insurance company that would pay all of its costs could meet in agreement.  Successful mediation could avoid trial expenses that I would have to pay for.  In the mediation, each side’s brief would place a stake in the ground describing its case, and then we would arrive at the settlement agreement.

The mediation session allows little opportunity for the presentation of evidence or witnesses that challenge statements in the opposing brief.  If the stakes are set too far apart, no meeting may be possible.  If one stake is placed near the center and the other, far afield – even if its logic might be found faulty in a longer evaluation – then the indicated median will favor the most outrageous party.  In such a situation, I still had my negotiator to rely upon.

My Brief

Jaffe’s assistant Bifoss sent me the draft brief at 10 pm on the night before it was due to the mediator.  Although she and Jaffe had had months to prepare the document, it was imperfect at best.  Bifoss based my lost wages on the wrong compensation and a period of loss that was too short.  I corrected the amount, corrected a misspelling of my name, and added reference to California’s protection of whistleblowers who report “reasonably suspected,” rather than actual, violations. 

The brief described in a bloodless, professional tone HomeFirst’s failure to act to correct the violations I had identified, and it listed some of the government agencies to whom I had reported them.  These constituted protected conduct under California’s whistleblower protection act, California Labor Code 1102.5.  Except in what it failed to do, nothing was surprising here.

Because my communications with Bifoss and Jaffe had been so spotty and Bifoss had sent the draft to me so late, I did not make a big deal of the three HomeFirst violations she left out.  I went easy on the brief’s impotent description of how CEO Jenny Niklaus had pushed for my retirement and had trimmed my responsibilities.  I did not point out how the brief understated the concern I expressed to Board members that the scope and intentionality of the violations were unprecedented at the company.  It stated that I had contacted the California Department of Industrial Relations for more information but ignored the complaint I filed.  It said that I had complained to the U.S. Department of Labor instead of the California Economic Employment Development Department.  There were simply too many problems to make sure that all of the possible corrections would be implemented properly.

The brief was slapdash, but it was done.  Jaffe had discounted the importance of everything save his ability to negotiate successfully with the other side, so it might still go all right.

HomeFirst Brief

In the narrative proposed by HomeFirst’s attorney Layton, the problem was the way I interacted with the company’s internal and external stakeholders.  I had been inappropriate when I challenged the Chair’s August 2013 order not to report violations externally; my warning the Board in January 2014 that a forecast would likely prove a waste of time was unprofessional.  I raised compliance problems, one after another, she said, without providing solutions as I was expected to do.

In Layton’s telling, when I admitted in March 2014 that I had reported two violations externally, I raised for the first time a disturbingly long list of compliance violations.  One of the complaints was unfounded, she said, and what I called bid collusion was just healthy nonprofit collaboration.  My insinuations were offensive, and my attitude was loathsome: I insisted that I alone was right. 

I intended, Layton said, only to find obstacles and cast aspersions on Jenny.  I had unfairly and disingenuously filed one complaint on the same day that she asked reasonable questions about the matter.  My email to the Audit Chair about Jenny’s violation of HomeFirst’s whistleblowing policy was just self-serving.  My May 28, 2014 meeting with Jenny was the last straw.  I twice called her a liar and said she was a piece of work.  Jenny would no longer meet alone with me.  I had to be fired.

Evidence was clear and convincing that my termination would have happened regardless of any whistleblowing.  And, anyway, she said, I could not prove that my termination was connected to my whistleblowing.  I was fired, she said, because I misbehaved, and then I cried whistleblower.  My executive position made my whistleblower claim less authentic than another employee’s because I was expected to work with Jenny and the Board to resolve the violations.

The brief was impassioned and infuriating.  The facts she claimed were incomplete or flat out wrong; and important facts were not included.  I had begun reporting violations to management in October 2013, not March 2014, and I always recommended corrections.  Layton claimed that I was personally responsible for fixing the problems even though Jenny had isolated me from correcting operations.  She held me up as obviously reprehensible for saying what was true: I had challenged Suzanne because her order was illegal; Jenny had lied; the forecast was a waste of time; HomeFirst had violated agreements and laws.

Layton’s brief assembled a long litany of my offenses with dates and references to different people who, it implied, could be called to testify if necessary.  To undermine the case she built would require discovery and depositions that Jaffe wanted to avoid through mediation; to refute her lies seemed impossible in a one-day mediation setting.  We would be stuck in endless he-said-she-said bickering.  Resolution during mediation would depend on the persons involved: a nonprofit nobly serving the homeless versus this irresponsible and impolite jerk.

Personal attacks against the whistleblower are common[1], and HomeFirst’s brief continued them.  Layton’s brief went after my character, and it relied on the assumption of shared beliefs: of course, one should not challenge one’s superior; of course, one should not undermine one’s employer’s position. 

Challenging the truthfulness of legal opponents is helpful, but it can be easier just to destroy them personally through shaming[2].  The witnesses may then destroy themselves.  The unrelenting brief made me doubt myself.  Maybe I was wrong in my analyses of the situations, in my disclosures, in my refusal to accept what Jenny and the Board said they would do, and in my general jerkiness.  Maybe they were right to fire me for my attitude. 

Still, the briefs were just posturing and positioning.  Jaffe decided not to use the emails that connected my termination to my whistleblowing, so neither side wrote anything that the other did not already know.  Neither attorney could expect to deliver a knockout punch in its brief even though Layton seemed to land a stronger barrage of blows. 

Everything would come down to negotiation, which Jaffe had done for more than 40 years.

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[1] Devine, Tom and Tarek F. Maassarani. The Corporate Whistleblower’s Survival Guide. San Francisco: Berrett-Koehler Publishers, Inc. 2011

[2] Ronson, Jon.  So You’ve Been Publicly Shamed.  New York: Riverhead Books.  2015