McEnany v. West Delaware County Com. School Dist.

• Decision Date: 04 March 1994
• Docket Number: No. C 92-2004.,C 92-2004.
• Citation: 844 F. Supp. 523
• Parties: Maxine McENANY, Plaintiff, v. WEST DELAWARE COUNTY COMMUNITY SCHOOL DISTRICT and Stephen L. Swanson, Defendants.
• Court: U.S. District Court — Northern District of Iowa

844 F. Supp. 523

Maxine McENANY, Plaintiff, v. WEST DELAWARE COUNTY COMMUNITY SCHOOL DISTRICT and Stephen L. Swanson, Defendants.

No. C 92-2004.

United States District Court, N.D. Iowa, E.D.

March 4, 1994.

COPYRIGHT MATERIAL OMITTED

Mark Zaiger, Shuttleworth & Ingersoll, Cedar Rapids, IA and Victoria Herring, West Des Moines, IA, for plaintiff.

Brian Gruhn, Mollman Wertz, Cedar Rapids, IA, for defendants.

ORDER

JARVEY, United States Chief Magistrate Judge.

This matter comes before the court pursuant to defendants' July 23, 1993, motion to dismiss or in the alternative to enforce settlement agreement, for sanctions, and for attorney fees (docket number 21). The motion was amended November 19, 1993 (docket number 34). Plaintiff resisted the motion on August 27, 1993. An evidentiary hearing was conducted on November 19, 1993. The parties subsequently submitted further testimony by deposition transcript. The court has reviewed all testimony, arguments, and briefs of counsel. The motion is granted in part and denied in part.

FINDINGS OF FACT

Plaintiff Maxine McEnany (McEnany) filed this suit on January 16, 1992. McEnany is the Business Manager and Secretary/Treasurer of the School Board of defendant West Delaware County Community School District (the District). McEnany's supervisor in her employment with the District is defendant Dr. Stephen L. Swanson (Swanson). In her complaint, McEnany alleges that defendants discriminated against her on the basis of sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and the Equal Pay Act of 1963, 29 U.S.C. § 206(d). McEnany alleges discriminatory rate of pay, creation of a hostile work environment, and retaliation. McEnany has also brought pendent state law claims of sex discrimination in violation of Iowa Code Ch. 601A. McEnany was represented by Attorney Mark Zaiger (Zaiger). Both the District and Swanson were represented by Attorney Brian Gruhn (Gruhn). On April 19, 1993, the parties consented to disposition of this matter by the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).

The present dispute arises out of mediated settlement negotiations among the parties held at the District's offices on June 16-17, 1993. Counsel for the parties first began discussions about mediation of the lawsuit during depositions in March of 1993. On or about March 11, 1993, the parties agreed that settlement negotiations should be mediated by a neutral third party.

Counsel for the parties agreed upon Attorney Peter Pashler (Pashler) as a mediator, and subsequently received the approval of their clients to approach Pashler about scheduling a mediation session.¹ Pashler had experience as a mediator while serving as executive director and mediator for the Iowa Public Employment Relations Board, as a mediator for other mediation services, and as a private mediator. Pashler has for several years been in private practice with the Des Moines law firm of Ahlers, Cooney, Dorweiler, Haynie, Smith & Allbee, P.C. All of the parties were familiar with Pashler from his appearances at seminars or public presentations, though none knew him personally, nor did he recall ever having met any of them prior to the mediation session.

McEnany and her counsel approved of the mediation session on the condition the defendants or their insurer would bear the costs. Defendants obtained approval from their insurance carrier, Employers Mutual Insurance, to pay a significant part of the costs of the mediation session, and defendants agreed to pay the rest.

Pashler does not recall who first contacted him about a mediation of the present dispute, but the mediation session was initially scheduled for April 27, 1993. Pashler requested a rescheduling of that mediation session for personal reasons and the mediation session was reset for the evening of June 16, 1993, at the District's offices. Pashler chartered a flight to Manchester, Iowa, for the mediation session.

At the commencement of the evening, the parties signed a Mediation Agreement that provided, in pertinent part, that "if a settlement is reached, the Agreement shall be binding upon all parties to the Agreement." Pashler was to be paid an hourly rate for mediation, and the parties contemplated one continuous mediation session. Pashler also disclosed to counsel for the parties that his law firm had done various kinds of legal work, including bond work, for the District over the preceding ten years, but that he had not personally been involved in any of that legal work. Pashler asked if any of the parties objected to his mediation in light of his firm's contact with the District. No one objected to Pashler's mediation on the grounds of any conflict of interest based on his or his firm's activities. The parties, counsel, and the mediator then proceeded to a joint meeting.

Pashler explained his role to all parties in the joint meeting. Pashler stated that he would leave as soon as he perceived that the parties were not moving toward settlement. Pashler reiterated this statement to both sides separately during the course of the evening's negotiations. McEnany's counsel, Mark Zaiger, then presented an extensive outline of McEnany's case, what he believed he could prove on her behalf, and what damages and attorney fees he believed he could obtain if the case went to trial. Pashler testified that he learned everything he knew about the facts of the case from Zaiger's presentation to the Board.

Pursuant to the format the parties had agreed upon, the parties then separated and the mediation began. McEnany and her counsel sat in McEnany's office, while the Board and Swanson sat in another room across the hall. Pashler moved between the rooms, although he sometimes conferred with counsel for the parties in the hallway. Counsel for both sides agreed that Pashler could discuss matters directly with the parties and was not restricted to discussion with counsel. Both counsel indicated that they would ask Pashler to leave the caucus room if they wished to discuss matters privately with their clients. Both counsel made several such requests during the course of the evening. Over five hours of continuous negotiation followed, terminating after 1:00 a.m. the morning of June 17, 1993.

Pashler, Gruhn, and Zaiger all kept notes of the various negotiation sessions. All parties saw Pashler's notes and those notes formed the basis for all settlement negotiations. Pashler's notes reflect eleven negotiation sessions beginning with McEnany as the first and all subsequent odd-numbered sessions. Even-numbered sessions were with the District and Swanson. See Defendants' Exhibit C.²

Pashler's testimony regarding the nature and conduct of this mediation is corroborated by the court's own experience. Pashler's style reflects a relatively "pure" mediation philosophy in that he believes that mediation does not have to lead to settlement to be successful and that ordinarily the failure of a case to settle does not reflect negatively on the mediator. Rather, Pashler stated his belief that mediation has been successful if the parties have exhaustively explored the options for settlement and either achieved settlement or concluded that settlement is not possible. This is not to say, however, that Pashler does not pride himself on the high percentage of settlements that occur in his mediations.

Pashler's experience with the climate of mediations is similar to that experienced by the court. Heated exchanges between counsel and their clients, among co-parties, or between counsel or parties and the mediator are common. These events are often very stressful and contentious and it becomes the function of the mediator to make sure that dialogue points toward a resolution of the problem rather than an escalation of it. Without acrimony, there would be little need for a mediator. Decisions become more and more difficult for the parties as the session progresses. Strong convictions about and attachment to a case are often difficult to compromise. This difficulty often surfaces and must be handled by the mediator.

Pashler also stated his belief that often parties will settle shortly after the mediator indicates that he wants to leave.³ Pashler favors one continuous mediation session because the parties frequently come back to the negotiations after with new demands.

Pashler testified that the mediation in this case was unusual because the parties contemplated McEnany's continued employment with the District. He was concerned that the relationship between the parties first be mended and future problems anticipated. He felt that money questions could be resolved later if non-monetary issues were settled first. McEnany demanded that her job description not be "watered down" in the future and wanted other job security. At some point, the parties agreed that a "facilitator" with school district experience should be available to the parties in the future to provide rapid resolution of previously unanticipated employment problems.

Thereafter, the negotiations concentrated on monetary issues, including McEnany's salary for 1992-93, her raise for 1993-94, back pay, and attorney fees. The parties initially discussed back pay and attorney fees as separate amounts, but later combined them because the District and Swanson wanted to negotiate a "package deal" that would leave it to plaintiff and her attorney to divide the proceeds.

After midnight, Pashler presented what was to be the defendants' last offer to McEnany. Pashler testified that McEnany and her counsel discussed the offer in private for over twenty minutes before Zaiger invited Pashler into their caucus room. Zaiger said that there were problems with the offer and that Pashler should discuss them with McEnany. McEnany stated that she could never accept changes in the "chain of command" at her employment. McEnany and Zaiger then had an exchange during which Pashler describes Zaiger's...