WinWinHR - Part 7

Home - Page 7 << 1 2 … 5 6 7 8 9 10 11 >>

Employment Blawg Carnival: Haunted House Edition

Posted on October 16, 2013 by Lorene

Welcome brave souls!

This month’s edition of the Employment Blawg Carnival is hosted by fellow employment law blogger Timothy Eavenson and is dubbed the “Haunted House Edition.”

Yours truly appears in the The Forgotten Passage, where Tim writes:

We’ll finally make it into the passage, but what’s that sound? It’s like something followed us in! Slowly you turn…to see…THE EEOC!!! There they are, haunting you from beyond the government shutdown grave! And, as you run away, you’ll hear Lorene Schaefer’s warnings fill the passageway: Beware EEOC’s Conciliation Efforts! 5,000 souls have already been shortchanged!

Click here to read Tim’s fun description of what other employment law frights lurk in the Haunted House Edition of the Employment Blawg Carnival.

Workplace Mediation: Q&A with Ogletree Deakins Partner Meg Campbell

Posted on October 14, 2013 by Lorene

As a part of the on-going series on mediation of employment lawsuits, I’m thrilled to be able to share with you this week the perspectives of defense counsel Margaret (“Meg”) Campbell. Like Atlanta plaintiff’s attorney Ed Buckley, who I interviewed last week, Meg has over 30 years of labor and employment law experience and is one of only 30 attorneys here in Georgia who are current fellows of the esteemed College of Labor and Employment attorneys.

For those of you not familiar with the College of Labor and Employment attorneys, membership in this organization is by nomination only and is limited to those who have practiced employment and labor law for 20+ years and have met the following qualifications:

The highest professional qualifications and ethical standards based on the College’s acclaimed Principles of Civility and Professionalism
The highest level of character, integrity, professional expertise and leadershipA commitment to fostering and furthering the objectives of the College
Sustained, exceptionally high-quality services to clients, bar, bench and public
Significant evidence of scholarship, teaching, lecturing and/or published writings on Labor and Employment Law

According to its website, membership in the college “honors those lawyers who have demonstrated to their peers, the bar, bench and public through long performance related to the practice of Labor and Employment Law that they represent.”

Meg has also been recognized as a “Leading Lawyer for Business” by Chambers, as one of “The Best Lawyers in America,” as a “Super Lawyer” in Georgia and as one of the top 50 women lawyers in Georgia.

Meg is a partner in the Atlanta office of Ogletree Deakins and is sought after for her expertise and experience in complex class and collective action litigation, whistleblower investigations and litigation including Sarbanes-Oxley and Dodd-Frank cases, appellate practice, and restrictive covenant law.

Q. My understanding is that one of the things you look for in selecting a mediator is subject matter expertise in employment law. Can you tell me why subject matter expertise is important to you in a mediator and perhaps share an example of how the mediator’s expertise (or lack thereof) helped or hurt you settle a case in mediation?

I believe that a mediator’s subject matter expertise is important in two ways: first, because employment cases have unique orders and burdens of proof and defenses, a mediator whose substantive knowledge is up to date can be most effective in helping the parties on either side appreciate the strengths of the opponent’s case and the weaknesses of his/its own case by presenting them from the perspective of an authoritative disinterested party; and second, because employment cases often present complex damages issues, a mediator with deep experience in mediating – and perhaps in litigating – employment cases has significant insights into case valuation and the likelihood of potential verdicts.

From a defense lawyer’s perspective, mediators without expertise in employment law really are not equipped to analyze and communicate effectively to the plaintiff the significant effect that burdens of proof and defenses have on the potential outcomes and value of a case. I also think that a mediator’s particular expertise in employment class or collective actions, as the case may be, is essential to mediating those cases successfully. I would say that in every case I’ve ever mediated whether the mediator had employment law expertise was determinative in whether the case resolved.

Q. What is your reaction to plaintiff’s attorney Ed Buckley’s view that when defense counsel gives only a “nominal statement” in the opening joint caucus that it is hard for him “to find a reason to persuade my client to move if I have no statement from the defense. If they don’t tell me why I have problems, perhaps I don’t have any, and I have no reason to move off my terms?”

I always pay attention to what my colleagues in the plaintiff’s bar think about mediation because understanding what they have told their clients to expect informs my approach to achieving success in mediation. That said, in a single-plaintiff case my usual inclination is not to present an opening statement that argues about the plaintiff’s problems in the case. I believe that such opening statements can and often do polarize the parties and the proceedings at the outset – something I definitely don’t want to do.

I prefer to convey our client’s intention to engage in a productive mediation with a successful outcome, recognizing that we will not resolve our disagreements about the facts but promising that we will work to find common ground that allows both parties to take the opportunity to conclude the matter on terms on which they can agree and put the matter behind them. I can’t remember a case in which I had not already discussed with opposing counsel the factual and legal issues in the case before mediation, and I think that embarrassing my opposing counsel in front of his client is not a good way to build trust, but if I had facts or arguments that I had not already disclosed to the other side before mediation – or that it became clear that opposing counsel had not disclosed to his client – I would do that in an attorney conference or through the mediator, not in front of the plaintiff.

In a class or collective action mediation where individual plaintiffs typically are not present, I will give an opening statement that focuses on the important arguments in favor of the defendant’s position and highlights the plaintiffs’ problems.

Q. What are your two top pet peeves about plaintiff’s counsel in mediations?

I try very hard not to get peeved in mediations, because I know that it makes me less effective. There are times, however, when opposing counsel creates a dynamic that undermines the mediation, wasting everyone’s time and resources and making it more difficult ever to resolve the case short of trial.

Usually that happens when counsel is unprepared herself or has not prepared her client for the mediation. Most often that results either from the lawyer’s not having determined (or not having explained effectively to her client) the appropriate valuation range for the case in light of the facts and the law, or from the lawyer’s not having switched from litigation mode to mediation mode.

Of course, it happens from time to time that despite her best efforts plaintiff’s counsel either doesn’t have or loses control of her client. In that case, a strong mediator can be very helpful.

Q. What is the key to a successful mediation?

The key is thorough preparation.

The defendant’s lawyer must be fully-conversant with the facts and the law in the case and must have made a thoughtful analysis of the risks and potential outcomes of the case; she should have had at least preliminary discussions with opposing counsel to describe the defendant’s position on the case and a framework for possible resolution, and to gauge the plaintiff’s inclination toward compromise; she must have prepared her client (and any insurer) for possible developments in the mediation and the appropriate range of authority required to settle the case; and she must have provided the mediator with a thorough and candid presentation of the case.

Court Rejects EEOC’s Argument that Its Conciliation Efforts Not Subject to Review

Posted on October 12, 2013 by Lorene

I remember being surprised at the intensity of the objections by some of the EEOC panelists to my suggestion at an EEOC public meeting earlier this year that the EEOC implement a pilot ADR program as a part of its conciliation process. One of those objections was made by an EEOC Regional Attorney out of the Phoenix District Office who commented as follows:

[W]e have a fabulously successful ADR program and I would urge employers to take more advantage of that than they do. That’s early in the process. It’s such a successful program. It’s a wonderful opportunity to settle. And there’s all sorts of opportunities to enter into no-fault settlement agreements and just settle a case along the way. But as Julie has said, once we have finished our investigation, we have determined there was discrimination and so our goals at that point are twofold. One is to make whole the victims of that discrimination and number two, we are trying to make sure that that discrimination never reoccurs in that workplace. And with those goals in mind, the statutory duty to enter into conciliation is on us, is on the EEOC. And so it’s our duty. I think a neutral in that situation is just inappropriate. If employers want to take advantage of the ADR process early on, I would really recommend that people, that employers do so. So I think it’s completely inappropriate for there to be a neutral conciliation process.

(emphasis added). To read the transcript of the EEOC public meeting at which my suggestion of an ADR conciliation program was discussed click here. The quote above is in the discussion from the panelists included in Roundtable III.

In reflecting on this comment, it struck me then and it strikes me now that the attorney misstates the procedural posture of the charge. The EEOC has not, in fact, as this attorney states “determined that there was discrimination.” Indeed, for the EEOC to do so would effectively usurp the role of juries in Title VII and other EEO cases. The EEOC is not judge and jury. The procedural posture at the time of conciliation is that the EEOC has found “reasonable cause” to believe that the charge is true.

It’s of course entirely possible that this regional attorney simply misspoke, but it does cause one to stop and ask whether it is this type of misunderstanding of the EEOC’s role and the procedural posture at the time of conciliation that is contributing to the type of tactics and actions we’re seeing of late from the EEOC.

But, I digress.

As I write this blog I think I’ve gained some additional insights into the intensity of the objections to my suggested pilot ADR program at the conciliation phase.

You see at the same time I was writing and submitting my written testimony to the EEOC suggesting ADR be a part of conciliation, the EEOC was (unbeknownst to me) preparing to file a motion in a case pending in the Southern District of the U.S. District Court of Texas arguing that federal courts don’t have the power to enforce Title VII’s requirement that the EEOC conciliate in good faith. In that motion, the EEOC conceded that whether it attempted to conciliate is judicially reviewable, but argued that how the EEOC conducted conciliation is not. In support of this argument the EEOC stated that “[t]he constitutional doctrine of separation of powers prevents judicial review of discretionary decisions by an executive agency, such as the EEOC.”

I just had occasion to read the EEOC’s motion and supporting brief in that case as the federal judge who heard the motion has this month rejected the EEOC’s arguments.

In reading the EEOC’s arguments in support of its motion, I must confess to agreeing with the employer that the EEOC’s argument is “remarkable” and “demonstrates a persistent and serious misunderstanding about basic principles of administrative law, sovereign immunity, and the nature of judicial review.”

After reading the EEOC’s arguments in this case, I guess I don’t feel so badly about my suggestions being summarily rejected by some of the other EEOC panelists at the public hearing. I mean the reaction that day is in line with what the lawyers over at Seyfarth call a “consistent message” from the EEOC — “nobody should tell us how to conciliate our cases, not even the courts.”

I urge the EEOC Commissioners and General Counsel to take this most recent loss as an opportunity to step back and reflect on whether these types of tactics and arguments are the highest and best use of your limited resources. Reflect on whether, for example, these resources would be better served trying to help resolve the 5,000+ employee claims the EEOC shortchanges each year.

Wouldn’t your limited resources be better spent trying to do what you’ve been charged by Congress to do — work with employers and the employees who have trusted you with their claims to informally resolve these cases?

Workplace Mediations: Q&A with Atlanta Plaintiff’s Attorney Ed Buckley

Posted on October 7, 2013 by Lorene

As a part of my ongoing series on workplace mediations, I recently caught up with esteemed plaintiff’s attorney Edward D. Buckley. Ed is a founding partner of the Atlanta law firm Buckley & Klein, LLP, which is one of Atlanta, Georgia’s oldest and largest law firms focused exclusively on representing employees—not employers—in labor and employment law. Ed and has been representing employees in civil rights and other employment litigation cases since 1983. He clients range from CEO’s of Fortune 500 companies to entry-level employees.

While Ed has won numerous multi-million dollar verdicts for employees in race discrimination, sex discrimination, sexual harassment and tort cases, he has also mediated and settled numerous cases on behalf of employees in age, race, sex, age, and national origin discrimination claims for six, seven and eight-figure sums.

Ed is highly respected by members of both the plaintiff and defense bars and I was excited he was willing to share his perspective on workplace mediations.

Q. How has your approach to mediation changed over the course of your 30-year career?

A. I spend more time and effort preparing for it. I think it is important for the plaintiff to give an orderly, organized presentation and have documents and, if appropriate, statements on the ready which will support his or her claims. Defendants and their counsel are not only looking at the merits of the case, but are also sizing up plaintiff and her counsel. A mediation is not a trial, but it is important for the defense to know I am ready for trial.

Q. What is your reaction to Richard Cohen’s (partner in the NY office of Fox Rothschild) answer to my question “When plaintiff’s counsel doesn’t permit his/her client to talk in the opening session of a mediation how does that impact your evaluation of the claim?”

Richard answered as follows: “I immediately get the impression if I have not deposed the client that she would probably make a bad witness since she is being prevented from speaking, which hardens my position. Similarly, I get the sense that plaintiff’s counsel is unsure about the case or her client’s ability to communicate the facts. And if I have already deposed the client, my guess is that the other counsel does not want to expose her to being “impeached” if she changes her story.”

A: That is an interesting perspective. I think there is no one-size-fits-all answer to the question of whether the plaintiff should speak in a mediation. If the case is a multiparty case, time alone may not allow all plaintiffs to speak. I do think it is a good idea, where possible, for the plaintiff to speak about damages. This statement should be carefully prepared. Even if the plaintiff is not very articulate, the emotion that comes across may benefit the process.

Q. What are the two most ineffective tactics you’ve seen defense counsel use in mediating a workplace dispute?

A. It seems to me that more often than not, defense counsel makes a nominal statement at mediation, almost a non-statement, perhaps on the strategy that he or she should give out as little information as possible. That causes me two concerns: 1) if defense counsel does not want to state her defense with some vigor, are we really conducting the mediation to settle the case, or just as a device for the defendant to get “free discovery.” 2) it is hard for me to find a reason to persuade my client to move if I have no statement from the defense. If they don’t tell me why I have problems, perhaps I don’t have any, and I have no reason to move off my terms.

Another problem is the “nickel and dime offer.” If that is what the defense wants to do, then lets not have the mediation. I go back far enough to a time when we regularly settled cases over the phone. Mediation is a great way to compress that extended process into a day where all people with authority are present and able to settle the case.That is a great thing, but a waste when there is no intention from the get-go to make a significant offer. This is not even an intimidation tactic. It just inflames the plaintiff and makes the case harder to resolve down the road.

Finally, defendants and their counsel should come to the mediation with a person with full authority to settle the case. I always do.

Note: This is the fourth installment in an on-going series in which I interview various plaintiff’s counsel, defense counsel and in-house counsel to get their perspectives on what makes a successful or unsuccessful mediation. In sharing these perspectives, my goal is to generate a rich discussion that helps us all improve our mediation skills.

You can read the kick-off post for this series, by clicking here, and my interviews with plaintiff’s counsel Donna Ballman here and Fox Rothschild partner Richard Cohen here. To read the response of defense counsel to some of the comments made in this Q&A by plaintiff’s attorney Ed Buckley, click here to read my Q&A with Ogletree Deakins partner Meg Campbell.

EEOC’s Conciliation Efforts Shortchanges 5,000+ Employee Claims Annually

Posted on September 27, 2013 by Lorene

After the EEOC investigates claims of civil rights violations in the workplace, it either finds “reasonable cause” that illegal conduct has occurred or not. For those reasonable cause findings, the EEOC is legally required to engage in efforts to conciliate the charge – essentially attempt to resolve the matter – before it decides to close its file or to file suit. Specifically, the regulations provide that the EEOC has a duty to “attempt to resolve the complaint by informal methods of conference, conciliation and persuasion.” 29 CFR §1691.9.

Unfortunately, there is no definition of what constitutes such “conciliation” efforts and the EEOC has long been criticized for engaging in “take it or leave” tactics at the conciliation stage. Earlier this month, a federal judge in New York joined in this chorus of criticism and sanctioned the EEOC for, among other things, “spurning [the employer’s] offer of conciliation and instead engaging in extensive discovery to develop the non-intervenor claims – already has and would further prejudice [the employer].”

In ordering the sanction against the EEOC, the judge noted she did not “impose this severe sanction lightly” and recognized that, as a result of the sanction, some of the employees who had meritorious claims would never “see the inside of a courtroom.”

Unfortunately, the employees impacted in the New York case by the judge’s sanction against the EEOC for its failure to engage in good faith conciliation efforts are not the only employees shortchanged by the EEOC’s “take it or leave it” conciliation tactics.

In 2012, for example, the EEOC found “reasonable cause” in approximately 9,425 claims, but closed 60% of those charges without any resolution or further litigation. Those individuals were left on their own.

Here is a chart I created using the data from the EEOC’s reported statistics for 2012. To create this chart, I pulled the number of reasonable cause findings and the number of successful conciliations from each of the EEOC’s charts on the different types of claims that can be brought under the laws enforced by the EEOC.

For example, according to the EEOC’s chart on charges filed and resolved under Title VII alleging race-based discrimination there were 1,179 reasonable cause findings in 2012 and 450 of those reasonable cause findings were successfully conciliated. Click here to review the EEOC’s chart on race-based discrimination charges. According to the EEOC’s webpage, the data for these charts “are compiled by the Office of Research, Information and Planning from data compiled from EEOC’s Charge Data System and, from FY 2004 forward, EEOC’s Integrated Mission System.”

EEOC Litigation Statistics for 2012

Number of Charges With “Reasonable Cause” Findings

(Title VII, ADA, ADEA, EPA)

Number of Successful Conciliations

Number of Lawsuits Filed by EEOC

Number of “Reasonable Cause” Findings where EEOC Took No Action

9,425

3,485

155

5,785

This abandonment of employees by the EEOC is not unlike the larger child sitting behind the smaller child and helping the smaller, younger child learn to teeter-totter with another child on the other side. Suddenly, without warning, the larger child jumps off the teeter-totter leaving the smaller child – who’d been benefiting from the tandem-situation – into a tenuous situation where leverage cannot be found.

As I did in March 2013 in my testimony to the EEOC, I urge the EEOC to, at minimum, implement a pilot program incorporating a structured ADR process into the EEOC’s post-cause conciliation process.

If the EEOC continues to refuse to implement a structured conciliation process, I urge Congress to consider legislation that would do so. Continuing to fail to provide any meaningful support for 60% of employee claims found to have “reasonable cause” should be viewed as unacceptable by anyone’s metric.

Former KY State Rep John Arnold and Other Elected Officials May Face Personal Liability for Alleged Retaliation

Posted on September 20, 2013 by Lorene

Kentucky attorney Thomas Clay, who represents the two women who claim former Kentucky state representative John Arnold sexually harassed them, says that Mr. Arnold’s resignation does not end the matter. Mr. Clay is not satisfied with the internal investigation conducted by the Legislative Research Commission (the women’s employer) calling it a “farce” and “smoke screen” and says that he is continuing to gather information about the “culture of sexual entitlement” in the Kentucky state legislature.

Unfortunately, these types of claims of alleged harassment by elected officials are not uncommon (e.g., former San Diego Mayor Bob Filner’s saga).

What is unusual in this case, from an employment law perspective, is that according to Mr. Clay under Kentucky’s Civil Rights Act, KRS 344.280 an individual can be held personally liable for retaliation. Significantly, this law also does not (unlike Title VII under federal law) contain any cap on damages. Mr. Clay says that he is currently gathering evidence to support illegal retaliation against his clients not only by Mr. Arnold but by other elected officials and anticipates filing a lawsuit.

It would seem that Mr. Clay knows what he’s talking about on this point. In 1998, he represented the plaintiffs in a race discrimination and retaliation case filed against the Jefferson County Fiscal Court in Louisville, KY and two of its employees individually. The two employees’ moved to have the retaliation claims against them dismissed individually but the trial court denied their motion. In affirming the trial court’s denial of the employees’ motion to dismiss, the Kentucky Court of Appeals noted that the Kentucky statute does not “mirror” the retaliation provision of Title VII, which forbids retaliation by “an employer.” Rather, § 344.280 forbids retaliation by “a person.” As such, the court concluded that “[t]he Kentucky retaliation statute plainly permits the imposition of liability on individuals.”

The case ultimately went to trial and Mr. Clay won a jury verdict that was affirmed on appeal against both the employer and one of the employees. To date, he reports that he has collected over $945,000 in damages and attorneys fees and is seeking additional damages for lost interest.

In discussing the case with Mr. Clay, he also noted that under Kentucky law it is actually also a crime to illegally retaliate against someone who has filed a complaint of sexual harassment.

In addition to facing a possible lawsuit for personal liability, Mr. Arnold’s actions are also being reviewed by a five member committee appointed by House Speaker Greg Stumbo. According to an article in the Courier-Journal, the committee has authority to take evidence and call witnesses. Disciplinary action could include a call to censure or fine Mr. Arnold.

Needless to say, this promises to be an interesting case to watch. One issue that comes to mind is what happens to any retirement benefits to which Mr. Arnold may be entitled if he is found either civilly or criminally liable for illegal retaliation.

Can You Say Discrimination? 28% of Recruiters React Negatively to Religious Posts/Tweets

Posted on September 11, 2013 by Lorene

Jobvite’s sixth annual Social Recruiting Survey came out this week and starts with the headline “[a]nyone not leveraging social referrals is behind the curve. “ The survey found that 94% of recruiters are now using or plan to use social media in their recruitment efforts.

Ok. That’s probably not that newsworthy as it makes intuitive sense. Social media is widely used and accepted. Makes sense that recruiters would be using it to source candidates.

What is newsworthy and should cause in-house counsel, employment lawyers, HR managers and business leaders across the U.S. to make sure their recruiters are well trained is captured on page 8 of the report:

28% of recruiters say they would react negatively to a candidate’s “overtly religious posts/tweets.”
2% of recruiters say they would react positively.
55% say they would be neutral.

I’ve copied the full chart from the report and taken the liberty of adding a big red arrow to the problematic finding. I’ve also added a quote from the “Questions and Answers: Religious Discrimination in the Workplace” page of the EEOC’s website.

Of course, the EEOC’s Q&A is based on Title VII of the Civil Rights of 1964 (“Title VII”), which prohibits employers from discriminating against employees or prospective employees because of their religion.

To read the chart in its original form without my commentary you can download a free copy of the full survey report by clicking here. For readers who would like to use the one-pager I created to do some training, you can download a pdf by clicking here.

Happy training!

Yes, The Mandatory ADA Interactive Process Means Employers Have To Actually Discuss Potential Accommodations with Employee

Posted on September 9, 2013 by Lorene

Two lawsuits filed in the past 11 days by the EEOC serve as a reminder that the mandatory “interactive process” under the Americans with Disability Act requires the employer to at least discuss whether there is an appropriate reasonable accommodation. There is not, however, any requirement that the employer necessarily agree to the proposed accommodation unless it is deemed to be reasonable.

The employer cannot, however, simply refuse to engage in any discussion with the employee about the proposed accommodation as these two employers allegedly did.

In the first case, the EEOC alleges that the employer refused “without discussing possible alternatives” to hire an applicant because he could not provide a urine sample for urinalysis. According to the EEOC, the applicant had “expressed his willingness to participate in drug testing and asked about reasonable accommodations such as drug testing not requiring urine, including blood or hair testing.”

In the second case, the EEOC alleges the employee asked for an accommodation following his back surgery and the employer “did not engage in any discussions with him about the suggested accommodations but simply fired him.”

Lessons for Employers

While I am sure that there is more to these two cases than is reported in the two EEOC press releases I’ve cited, what is clear and should be clear to all employers is a simple lesson:

Talk to your employees when they ask for an accommodation. Document that you have discussed their request with them. Document your decision making process.

You don’t have to agree to a request for accommodation unless its reasonable, but you do need to discuss it. Perhaps as importantly, you should be prepared to demonstrate to the EEOC and to a plaintiff’s attorney if necessary that you discussed it.

Hat tip to my fellow employment law blogger Jon Hyman at the Ohio Employer’s Law Blog.

Workplace Mediations: Q&A with Fox Rothschild Partner Richard Cohen

Posted on August 19, 2013 by Lorene

This blog is the third in a series about workplace mediation. In the series, I will be interviewing various plaintiff’s counsel, defense counsel and in-house counsel counsel and sharing their insights for successfully mediating a workplace dispute. In sharing these perspectives, my goal is to generate a rich discussion that helps us all better serve our clients by improving our mediation skills.

If you missed the first in the series check it out here. In Blog 2, I interviewed plaintiff’s counsel Donna Ballman. Today, I’m interviewing Fox Rothschild partner Richard Cohen.

Richard brings a great perspective to this discussion. His first job out of law school was as litigation counsel for the New York City Law Department. He then became Vice President and Assistant Counsel for the Manufacturers Hanover Trust Company for 8 years before moving into private practice, where he has litigated, arbitrated and mediated for the last 25 years. He is now a litigation and employment partner in the New York office Fox Rothschild and is a regular contributor to the Employment Discrimination Report, an employment law blog. To learn more about Richard click here.

Q. How has your approach to mediation changed over the course of your 35 year career?

A. Two major things have taken place in that time: the number of trials has plummeted across the country, and “alternate dispute resolution” has taken off. There are many reasons for this, skyrocketing legal fees perhaps being the most significant.

Mediation was relatively untried in the early days of my career and there were few trained mediators, or lawyers who knew what to do when the process was not overtly adversarial. The lawyers acted as if they were in court arguing to convince the mediator of the merits of their case, with little understanding of the collaborative nature of the process. Not much was achieved by way of actual resolution, and lawyers, always leery of change, stayed away.

Now, mediation is a known quantity, well-established, and, in fact, very frequently court-ordered! And in my experience, it has become more successful in resolving disputes.

Q. Do you approach the preparation for mediation as outside defense counsel differently than you might have if you did not have the added benefit of having worked as an in-house counsel?

A. As an in-house lawyer I was not on the front lines and I was able to play the “difficult client” role when the outside defense counsel was mediating, whether I was in the mediation room or not. I learned the role of the in-house counsel within the company, her limit of authority for settlement, who she had to report to and the politics and economics of the company – all of which I am more sensitive to now when I mediate (or litigate).

Q. When plaintiff’s counsel doesn’t permit his/her client to talk in the opening session of a mediation how does that impact your evaluation of the claim?

A. I immediately get the impression if I have not deposed the client that she would probably make a bad witness since she is being prevented from speaking, which hardens my position. Similarly, I get the sense that plaintiff’s counsel is unsure about the case or her client’s ability to communicate the facts. And if I have already deposed the client, my guess is that the other counsel does not want to expose her to being “impeached” if she changes her story.

Q. Can you share with us your top pet peeves about mediation, plaintiff’s counsel and mediators?

A. Lack of preparation is always on top of the list. If I am prepared and my client is prepared and the mediator is prepared, all of our time is being wasted by an ill-prepared counsel, and the likelihood of a successful mediation – which should be the goal of all participants – is decreased. Also, an intransigent or unreasonable counsel or client makes me feel that the other side is not interested in a resolution – at least not at this stage. Finally, a mediator who is clearly not interested in spending the time to resolve the dispute – which, when it happens, is usually when the mediator is a volunteer, and/or is court-appointed and uncompensated. Mediation is hard work for all and you cannot hope to achieve success without time and effort.

Q. How about the other side of the coin? What do plaintiff’s counsel who you view as most effective at mediation do differently as compared to their colleagues.

A. They realize that it is in the best interest of their client to drop their combative posture (not easy for a litigator!), be cooperative and look for ways to avoid an impasse and achieve a realistic settlement – even if it is not ideal. The goal is to get to an agreement, not to “win” or convince the mediator.

Q. What do effective mediators do differently in your view?

A. They are empathetic to the positions and sensitivities of both sides, realize that both sides feel aggrieved, and yet they can be candid, forthcoming and strong enough to confront both sides with the weaknesses in their positions. They are also tireless (God bless them!), and do not take a simple “no” for an answer, but seek ways to get to “yes.” They realize that a successful mediation is a win-win situation, even if neither side realizes it at the time and does not leave the room feeling overjoyed.

______________________________________________

Workplace Investigations Group is headquartered in Atlanta, GA and has a national directory of professional workplace investigators who are all attorneys and have a minimum of ten years of employment law experience. As such, wherever the workplace issue arises, corporate counsel and employers can easily identify an investigator who can respond to the regional need quickly, impartially and competently. For more information: www.Internal-Investigations.com

Workplace Mediations: Q&A with Plaintiff’s Attorney Donna Ballman

Posted on August 15, 2013 by Lorene

Earlier this week, I kicked-off a blog series about workplace mediation. I’ve dubbed this series the “Atticus Finch Walk In Your Skin” and over the next several weeks I will be interviewing various plaintiff’s counsel, in-house counsel and defense counsel to get their perspectives and learnings about how to most successfully mediate workplace disputes.

To kick us off, I’ve invited plaintiff’s attorney Donna Ballman to join us. Donna’s firm is located in Ft. Lauderdale and she represents employees throughout Florida. Her new book, Stand Up For Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards, was recently named the Winner of the Law Category of the 2012 USA Best Books Awards and is currently available for purchase. She’s been practicing employment law, including negotiating severance agreements and litigating discrimination, sexual harassment, noncompete agreements, and employment law issues in Florida since 1986. To read Donna’s full bio click here.

Q. What’s the worst thing you’ve ever seen a mediator or defense counsel do during a mediation?

A. The absolute worst thing I’ve seen mediators do is display an obvious bias, which is a huge no-no. When they make it clear that they’ve taken a side, then they lose their credibility and it makes the case way harder to settle. I find that clients who think the mediator is biased are less likely to settle the case at mediation. It hasn’t happened often, but it does happen.

Other than this obviously improper behavior, one of my pet peeves is the trend toward marathon mediation. When I started mediating, mediations were scheduled for 2 – 3 hours. The trend today is to hold mediations that last 6, 9, 12 or even more hours. I actually did an article about why I think marathon mediations don’t benefit employees, and what can be done to stop them from happening.

As to management-side counsel, the worst thing I’ve seen happen is an attorney who comes in and starts attacking my client. They do a big statement on every reason in the world why my client was a terrible employee and is a terrible human being. What that tactic does is makes my client want to have their day in court. They dig in their heels and don’t want to even discuss settlement. The better tactic is to leave the attacks for the courtroom and leave them out of mediation.

I actually had two mediations where management-side lawyers told their clients that they guaranteed they’d win on a certain issue, which meant the case didn’t settle. In both cases, those lawyers lost those issues in court. I’d have loved to have been a fly on the wall in the client meeting where they had to explain what went wrong with their guaranteed win. Only an idiot would guarantee a result to a client. No lawyer can predict what a judge or jury will do, and experienced lawyers know this.

Q. Have you ever had a situation where you saw or heard something before a mediation that made you think the case would never settle? What happened?

A. I’ve had cases that I thought would never settle that ended up settling at mediation, and cases that should have settled that didn’t. Sometimes hard cases settle because of a good mediator, but I think the lawyers also have a lot to do with whether or not cases settle. If a lawyer comes into the mediation with the intent to negotiate in good faith, and really explains what a long and drawn-out process litigation is, then I think their client will have the right attitude and try to settle in good faith.

I had one case where I’ve known opposing counsel for years on multiple cases. We were mediating and in caucus. The mediator was saying things to me that didn’t sound like what I usually hear from this lawyer. The lawyer finally came to me and asked to speak with me without the mediator. We compared what the mediator was telling each of us and realized that she wasn’t relaying information or offers correctly to either side. We sat in the room and settled without the mediator. The mediator seemed surprised when we came out and told her to write it up. If you have a good rapport with opposing counsel, it can sometimes make a world of difference.

Q. What are the top two most effective tactics you’ve seen a defense counsel use in a mediation?

A. If defense lawyers come in with a reasonable offer to begin with, I think it goes a long way toward showing that they’re negotiating in good faith. Too many defense lawyers have a standard lowball offer ($5000 being the most common one) when they know the case won’t settle for that. Lawyers that put a real number on the table and don’t start with an insult can really help convince my client that they are serious about settling. A lowball offer is usually considered a slap in the face by the employee, and it makes the mediation more difficult.

The other thing that really helps me convince my client to settle at mediation is a defense lawyer who can present me with some evidence. If you claim that my client was written up 20 times, bring the write-ups. Sometimes my clients see them and can show that they were falsified. For instance, a write-up without my client’s signature is a red flag. If we can point this out, then the employer may realize that their fake claims won’t fly. Sometimes my clients “forget” that they were written up for certain offenses, and seeing the write-ups can help convince them to accept a reasonable offer. Defense lawyers who hide the evidence and tell me things but won’t show me the proof are asking my client and me to take a huge leap of faith that we’re being told the truth. There are very few lawyers who have built up that kind of trust with me over the years, and even fewer that my clients will trust. Why hide the evidence? It will come out in court anyhow. Don’t waste everyone’s time claiming you have evidence that doesn’t exist or that you won’t show me.

Addendum: To get the perspective of defense counsel and Fox Rothschild partner Richard Cohen click here.

______________________________________