Originally from Alternatives to the High Cost of Litigation

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It had been a very painful dispute and then lawsuit. Now a mediation was ahead. The inside counsel to a large shipping company enjoyed the train ride to Boston from New York City, filled with the expectation that an emotionally wrenching, vicious and troubling conflict might get resolved in mediation.

Two years earlier, a ship had been sunk because the ballast was improperly distributed; in a rough sea, the ship listed to one side and went down. From the company’s perspective, the ballast and the safety of the ship were part of the captain’s responsibility. No punitive action was taken against the captain, however, despite the enormous loss. The captain at the time of the incident was a well-liked long-term employee.

One year earlier, in a move to downsize, the company let the captain go. The captain filed suit for age discrimination, naming not only the company but several decision-makers as defendants and making a seven-figure demand. The company wanted to pay nothing as the contract between the captain and the company was at will and the previous ship loss made the captain’s claim seem preposterous.