For longtime neutral Phyllis W. Cheng, resolving complex employment and civil rights disputes requires more than understanding the law and navigating challenging emotions. It's often about the art of the dry-erase marker.
"I always use a whiteboard to keep track of all the negotiations and all the numbers," Cheng said. "And part of using the whiteboard - in addition to just keeping track of everything - is to help people get off of their grievance and into the numbers, into the solution."
Focusing full-time on private neutral work since 2016, Cheng joined ADR Services, Inc. in 2018, and she tackles disputes exclusively these days as a mediator.
"I would say 75% of my mediations tend to be around employment - discrimination, wage and hour, class actions, all those types of things," Cheng explained. "And then I would say I do probably close to 25% civil rights."
A 1993 Southwestern University School of Law graduate, Cheng worked on civil rights cases as a California deputy attorney general, was later a senior court attorney for the 2nd District California Court of Appeal and went on to work as the director of the California Department of Fair Employment and Housing before wrapping up her litigation career as an employment partner at DLA Piper in 2016.
Cheng said she decided to "just try" private neutral work after retiring. She volunteered for mediation panels at the U.S. Central District Court and the state 2nd District Court of Appeal.
"I loved it. It opened up a brand-new career for me, and I'm so glad," Cheng said. "It was just a wonderful surprise, ... and I intend to keep doing it until I can't."
Cheng noted that the civil rights disputes she works to resolve often feature allegations of excessive force and wrongful death, but they've typically "already gone through all the criminal adjudication."
"It's very compelling. It's very vivid, and it's not about money so much as it is about people who've lost their liberty," Cheng said. "I have done a couple of cases in which individuals were apparently wrongly incarcerated, wrongly accused of crimes they allegedly did not commit. So, these are very big cases and very compelling."
Los Angeles defense attorney Thomas C. Hurrell has used Cheng to mediate more than 20 civil rights cases, featuring allegations against law enforcement like excessive force and sexual assault. Hurrell said there aren't many mediators who "do civil rights involving constitutional claims."
"It has a rather high learning curve," he said. "So, she's one of the few neutrals out there that actually has a pretty good working knowledge base of the law and what it takes to either prosecute or defend one of these cases. So that's one reason I think she's been appealing to the clients I work with."
Hurrell mentioned another reason his clients appreciate Cheng.
"She has a good way of assessing the plaintiff to give an indication as to whether he or she is going to be well-liked [by juries] or not," Hurrell explained. "She pretty much is spot-on in terms of that analysis."
Before her mediations, Cheng said she always schedules conferences with counsel, hoping to iron out details such as: Who's coming, what the parties think about joint sessions, have briefs been exchanged and is a translator necessary.
Cheng also asks plaintiffs' counsel to provide a breakdown of their opening demand beforehand.
"Say it's an employment case. 'Is it lost wages, emotional distress, out-of-pocket expenses?'" Cheng explained. "'All of those things - I want you to break out as close as possible.' That really helps me understand how they reached that number, and that really helps me help them settle the case."
Beverly Hills plaintiffs' attorney Jordanna G. Thigpen has used Cheng to mediate a dozen employment disputes featuring discrimination and retaliation claims.
"She really makes people feel heard and feel seen," Thigpen explained. "And they're happy that someone has listened, been compassionate and empathetic."
Thigpen added that Cheng will also speak plainly to clients.
"She is very matter of fact about the struggles and the challenges they will face going forward in litigation," Thigpen said. "There's a lot of uncertainty around the process of litigation - even if you have a totally home run case. If you're in litigation, there's always going to be some doubt, and she's excellent at working with clients in that sense."
Los Angeles plaintiffs' attorney Robert S. Brown has used Cheng to resolve several employment and police misconduct cases, and he also praised the mediator's approach with clients.
"She is an absolutely fantastic mediator in terms of her temperament, her disposition and her ability to make the client comfortable," Brown said. "At the end of the day you're dealing with human beings, and if you have someone who is very emotionally intelligent, then I think that's more than half the battle - regardless of what the practice area is."
Like Thigpen, Brown said Cheng isn't afraid of straight talk.
"She's not an arm twister," Brown explained. "But she's someone who can tell me about where she maybe doesn't agree with respect to my case - though, in a way that's respectful. And again, she's very sensitive if clients are present or if we're talking outside of the presence of a client. ... She's just very easy to work with."
Hurrell, however, took his description of Cheng's evaluative approach a step further.
"She's not afraid to tell you what she thinks - be it good or bad," Hurrell said. "She's brutally honest. ... But being on the defense side, I can get a little jaded, and sometimes it's really helpful to have a third party kind of open your eyes."
Hurrell also praised Cheng's efficiency.
"She doesn't waste a lot of time with war stories," he said. "She gets down to business, and that's definitely appreciated."
A longtime glass artist, Cheng noted that it's common for her to sit in front of a bookcase full of her artwork during Zoom mediations, and she always tries to make use of a little creativity in her approach to resolution.
"I try to ferret out solutions that people maybe haven't thought about or tried before," she said, "just to take the process out of the norm a bit and look at each conflict as a potential for carving out a solution that can address a number of different challenges."
Here are some attorneys who have used Cheng's services: Jordanna G. Thigpen, Thigpen Legal PC; Robert S. Brown, Robert Stanford Brown APC; Thomas C. Hurrell, Hurrell LLP; Christian J. Keeney, Jackson Lewis PC; S. Emi Minne, Parker & Minne LLP.