Over time, we have come to believe that being in mediation is sort of like being in Las Vegas. And as the saying goes, what happens in Vegas there stays Vegas. Of course, we also know that this is not always true as it relates to Las Vegas. Indeed, I recently saw a billboard advertising divorce lawyer services that said "When what happens in Vegas doesn't stay there." Despite the clear mandate of Rule 408 confidential settlement negotiations, which insulates settlement discussions in mediation from usage in subsequent litigation, not all comments made in mediation are deemed settlement negotiations. And if it is not settlement negotiations and documents related to same, it does not need to "stay there."
For example, telling your boss to "take your settlement offer and shove it up your a$$" and "you can fire me and I'll see you in court" is not remotely considered confidential settlement negotiations. Furthermore, according to the 7th Circuit Court in Benes v. Data LTD, your employer's decision to accept your offer and fire you does not rise to the level of retaliatory conduct in derogation of Title VII. Michael Benes learned this lesson the hard way.
According to the case, Mr. Benes had only worked for the employer for four months before filing a sex discrimination charge with the EEOC. Shortly thereafter, the parties agreed to mediate the dispute. As is typical in an employment mediation, the parties were separated into their own rooms for private caucus sessions. This allows the mediator to shuttle back and forth between rooms and share information and offers while helping to keep down the hostility between the parties. After all, hostility does not foster an atmosphere conducive for settlement.
Unfortunately, Mr. Benes could not contain his hostility when he received an offer that he deemed insulting. While receiving a low-ball offer is not uncommon, it is common for the employee (or his attorney) to tell the mediator to share an equally ridiculous counter-offer to the employer. What is highly uncommon, however, is for the employee to leave his room, storm into the employer's room, and tell his boss to take this offer AND this job and shove it! This is exactly what the employer did. The court subsequently told Mr. Benes that he could take his lawsuit and shove it.
Affirming the trial court's dismissal on summary judgment, the 7th Circuit stated that mediation would be less useful if people did not honor the structural integrity of the process. Furthermore, sanctions against a person displaying misconduct fosters the goals of Title VII, whereas, being fired for egregious behavior is not indicative of retaliatory conduct in violation of the statute. Had Mr. Benes proven he was fired for filing the charge, his argument would have been more plausible. However, the record was clear that he was fired for his conduct in mediation and not for filing the EEOC charge.
The moral to the story: if you think someone is not negotiating in good faith, you can end the mediation. You cobring it to the attention of the court in hopes of getting the bad actor sanctioned. However, you should not take action yourself. After all, while settlement negotiations in mediation are confidential, not everything said in mediation stays in mediation. Your words might come back to bite you later.