Mediation in the Workplace

Media&ng Workplace Disputes By

Lorene F. Schaefer, Esq. Mediator & Workplace Inves&gator

www.OneMedia&on.com

© Lorene F. Schaefer, Esq. www.WinWinHR.com

Employee Lawsuits Are Costly

 Costs to defend typical employee lawsuit - $150,000+

 Length of time (including appeals) – 2 to 4 years

 Non-Economic Costs

  Stress, anger, distraction   Lost productivity   Low morale/employee turnover


Dispute Resolution Continuum Higher Control Lower Control

Lower Costs Higher Costs

Parties Decide Outcome Neutral Decides Outcome

Negotiation Mediation Arbitration Judge Jury

Info

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© Lorene F. Schaefer, Esq. www.WinWinHR.com www.OneMediation.com

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What is Mediation?

  Informal process that uses neutral, third-party to assist parties in finding mutually acceptable resolution

  Not an adjudication

  Mediator does not decide what is “fair” or “right”

  Mediator cannot and does not force settlement

  Mediator will seek concessions


Why Mediate?   Private & Confidential

  Participants Have Ownership of Process & Decisions

  Opportunity for Better Results

  Quicker Resolution

  Decreased Stress, Disruptions, & Distractions in the Workplace

  Creative Solutions to Problems © Lorene F. Schaefer, Esq. www.WinWinHR.com

Selecting a Mediator

Experienced Employment Attorney

Neutral & Trustworthy

Flexibility of Styles

Mediation Training & Experience

Good Sense of Humor ©Lorene F. Schaefer, Esq. www.WinWinHR.com

Preparation is Key to Success

Know Your Case (Best, Worse, Most Likely)

Submit Good, Solid Pre-Mediation Brief or Have Telephone Call With Mediator

Determine How You Will Present (Charts, Verbal)

Agree on Who Will Say What in Opening & Joint Sessions

Obtain Settlement Authority Outline Negotiation Strategy

©Lorene F. Schaefer, Esq. www.WinWinHR.com

Negotiation Strategy

  Develop a strategy but remain flexible.

  Will You Make First Offer? What Will It Be? Do You Want to Set the Expectations or Manage Them?

  Let the Negotiation Flow – Never Try to Short Circuit It

  How Will You Use Your Evidence In Mediation?

  “Back Pocket Approach”   “Trickle”

  “Smoking Gun”


A Special Word About Settlement Authority

  Lawyers don’t settle cases, clients do

  Defining “Full Settlement Authority”

  Don’t forget possibilities other than $

  Good faith negotiations

  Do you want to have to “phone home?”

Apology?

Letter of Reference?

Retirement Party?


What to Expect in a Mediation

Mediator’s Opening Comments

Opening Comments of Attorneys & Participants

Joint Discussion to Explore Issues & Ask Questions

Caucus(es) – Separate Private Meeting(s) with Each Party

Reconvened Joint Session(s)

Resolution & Closure

Though there is no set format, the following are typical phases


  Opening statement – opportunity to speak and listen to other side without “filter” of lawyers.

  Listen, Listen, Listen – Opportunity to deal with emotional obstacles – “Day in Court”

  Speak directly, but politely – Avoid rude behavior

  Discuss from perspective of what reasonable fact finder likely to conclude vs “what really happened”

  Ask clarifying questions – but Respect, Respect, Respect

Opening Statements & Joint Session


Private Caucuses   Be Prepared – Mediator Likely Will Ask Client More Direct Questions

  Anticipate – “What is Your Settlement Authority?”

  Additional Fact Sharing

  Confidential Designations

  Use the Mediator as a Sounding Board for Negotiation Strategy


“The Dance” & Talking Numbers   What motivates the decision maker(s) in the other room?

  Recognize the Mediation “Dance” – Don’t be Too Anxious to Negotiate $ – Allow “Day in Court”

  The Rule of Reason – Be Ready to Articulate Employer’s “Why” & Probe Employee’s “Why”

  Constantly Re-Evaluate Strengths & Weaknesses

  Determine Settlement Range and Value


Documentation & Closing the Deal Signed Term Sheet or Settlement Agreement

①  Parties

②  Claims

③  Timing of Performance

④  Release

⑤  Dismissal Pending Actions

⑥  Confidentiality

⑦  Agreement Not to Execute Any Existing Judgment

⑥  No Admission of Fault

⑦  Remedies for Breach


Be Prepared – Other Potential Terms Although not always included, the following terms are sometimes negotiated:

  Mutual Non-disparagement

  References

  Non-Compete

  Non-Solicit of Customers

  Non-Solicit of Employees

  Charitable Contributions

  No Re-Apply

  Joint Press Release

  $ Paid Over Time

  Outplacement

  Sensitivity Training

  Regret or Apology


Resolved

Congratulations!! ©Lorene F. Schaefer, Esq. www.WinWinHR.com

Resolved

Follow-Up - Do Not Give Up

Mediation is a

Process. Not an Event.

Use Your Mediator!!! ©Lorene F. Schaefer, Esq. www.WinWinHR.com

\ Thank You!

My Blog: WinWinHR.com

@WinWinHR Lorene F. Schaefer, Esq. www.OneMediation.com

Email: [email protected]

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Mediation in the Workplace