Description of Scenario
This mediation involves the termination of an employee named Sherri from a hypothetical home improvement store. Sherri had done her job well for years, but in recent months she had become tired and forgetful, and her work performance declined. Sherri consulted many doctors, but none could find an explanation for her symptoms. With no explanation for Sherri’s erratic behavior, her supervisor, Jean, finally fired Sherri.
After her discharge, Sherri was diagnosed with multiple sclerosis (MS) which, when untreated, explains her symptoms. Sherri filed a lawsuit for discrimination based on disability. However, when she was working neither Sherri nor her boss had considered her to have a “disability,” nor had she ever requested any accommodations for any disability. For purposes of the film, viewers are asked to assume that whether the law was violated is not clear. For both Sherri and Jean, going to trial would involve significant personal and financial costs, and trial would lead to an uncertain outcome.
By the time of the mediation, most of Sherri’s symptoms are successfully controlled with medication, and her other symptoms may not prevent her from working if some reasonable accommodations can be agreed upon. However, returning to work would require repair of the relationship between Sherri and her boss, so the attorneys have referred the clients to mediation.
Viewers are asked to assume that, in consultation with their clients, the attorneys already have agreed on a tentative monetary settlement in the event that the parties are able to resolve the dispute involving Sherri’s job status. Thus, back pay will not be on the negotiating agenda. At this point, the dispute hinges on (1) whether the parties can resolve their contentious inter-personal issues in order that the employer can consider reinstating this excellent and seasoned former manager, and (2) whether any reasonable accommodations are available that could enable Sherri to do the essential functions of her prior job (or possibly another job) if reinstatement were contemplated. The first question is a question of personal relationships. The second is a function of Sherri’s current abilities and needs and Jean’s business judgment. Such questions, the attorneys have determined, are amenable to direct negotiations between two articulate parties. The lawyers have vetted potentially acceptable proposals and solutions with their clients before the session, are available by telephone during the session if needed, and will review the final settlement terms.
The simulation is based on an actual conflict, though the names, details, and type of workplace in the film have been changed. The “actor” portrayed in the video has been negotiating the ups and downs of multiple sclerosis for over a decade, with various levels of accommodations from employers. She and the producers hope that the film educates viewers not only about mediation skills, but also about the challenges of MS. As with the auto-immune disease at issue in this story, a number of physical, cognitive, or mental illnesses and disorders initially may be difficult to identify. The symptoms and severity of MS also can vary greatly between individuals with the disease. Once the illness is diagnosed and discussed between the employer and employee, in many cases there are a variety of accommodations that can be implemented easily and inexpensively. Other needs can sometimes require more problem-solving. Fortunately, most people with MS learn to cope with the disease and lead satisfying and productive lives, and new treatments and advances in research are promising. For more information, visit http://www.nationalmssociety.org