Profile of the Month – Diana Shukis
Diana Shukis is a principal with the law firm Garvey Schubert Barer. Diana partners with employers to assist them in the wide-range of personnel issues that arise for virtually every business, for example, workplace harassment and discrimination, compliance with wage and hour and paid sick time laws, and managing leaves of absence and accommodations. Diana’s clients turn to her for advice and proactive assistance as well as representation in litigation and administrative proceedings, which Diana approaches with an astute business-minded and practical approach. In her strategic advice practice, Diana drafts and implements policies and procedures, provides critical advice during volatile situations, and offers tailored management and employment training. Diana also conducts workplace investigations.
- How often do you have cases that involve mediation?
On the average, I mediate a case once every month. At the very least, I mediate cases ten times in the year. I’m a strong believer in seeing if cases can be resolved and look at possibilities for early resolution. As a result, I engage in mediation fairly often.
- What qualities do you look for in a mediator?
I look for somebody who is a quick study. I need to be confident that the mediator can look at materials from both sides, grasp what the case is about, what the facts are, and can identify what’s really important to help the parties move forward.
The mediator has to have certain qualities. Just the ability of the mediator to be able to connect with the parties is important. Being able to connect with the parties is a very subjective factor and differs pretty dramatically with every case, and with the parties involved in each case. Ultimately, the mediator has to listen to what both parties are trying to say and hone in on what is truly important.
I’m a defense lawyer and represent employers. I do a lot of listening and seeking input from plaintiff’s counsel because they know their clients and they know who and what their clients might listen to. In employment cases, a good mediator has a balanced way of being open and of showing compassion, particularly in being able to listen to the issues. The mediator is able to understand what the parties’ experience has been and balance that with the the realities of litigation and what challenges might be present in the case. On some level, that holds true for my client on the employer side—it’s really important for me to listen to plaintiff’s counsel to know what’s really important to their client.
3.How strongly do you push to have a mediator you propose be accepted by the other side?
I don’t have my pride invested in the mediator selection process, or think that the mediator has to be somebody that I suggested. The right mediator for the case might be someone who I haven’t even thought of, but is someone suggested by the other side. It doesn’t always mean I will take their suggestions, but it is not about winning; it is about who will be the most effective mediator in a particular matter.
- How important is pre-session communication with the parties?
That can be very valuable and I do appreciate mediators who provide the opportunity to talk with parties in advance. In my view, it’s a nice opportunity to get the inside scoop that’s not in the mediation materials exchanged with the other side. It can really speed up the process, which I appreciate.
- How important is it for the mediator to follow-up if the mediation doesn’t result in a settlement? Mediator follow-up can be the difference, but it varies. I’ve had circumstance when the cases settled because the mediators did follow-up. In other cases, though, follow-up didn’t result in a settlement.One of my pet peeves is when mediators say they will follow-up and then do not. I had a circumstance when the case was not resolved in mediation, and then the mediator was out of the country. The mediator then followed up when he returned, and while there wasn’t a resolution, or an action item to move forward, I appreciated the additional effort.
- What ADR topics would you like to see discussed at an ADR-related CLE?
It is generally valuable to get input from meditators about what makes an effective mediation or increases the odds of a mediation being effective, from their perspective. I remember hearing from a mediator about specific things for the parties to do in advance of the mediation—to set it up for success. A mediation- related CLE around that topic would be appreciated.
- Tell me more about your practice…My practice in employment law is a combination of litigation and more forward-looking, problem prevention efforts such as advice and counseling and training. A large part of my practice is offering counsel and training to employers. I also place strong emphasis on early resolution or seeing early on how a problem can be solved. Some of my cases can be solved without a formal mediation, but often do include a mediator. Litigation in the employment context is far from perfect for resolving disputes; it has a major impact on the individual plaintiff as well as the employer. I spend a lot of time, not only solving problems, but finding ways to prevent problems.
- Are there any issues or trending topics that you would like to discuss?
No doubt about it, the #MeToo movement and workplace misconduct and sexual harassment issues have been a major focus in recent months. A good portion of the time, I’ve been able to focus on proactive counsel and management training. The #MeToo movement has placed more focus on workplace misconduct and sexual harassment issues at a much higher level in organizations. This is something all employers need to pay attention to. Unfortunately, it is not all happy and proactive. There is an increase of concern and complaints related to workplace misconduct and sexual harassment as well. Another area I am involved with is conducting investigations. There has been more focus on that too with the #MeToo movement. Another trend I have observed is that businesses are more open and welcoming to the idea of focusing on early dispute resolution and mediation—and that’s something I’m passionate about. Some cases cannot be resolved short of trial, but the parties are better off if they seriously consider resolution as early as possible.