Mediation in the Mainstream, and Beyond

Next week, October 14-20, 2012, is Mediation Week, sponsored by the American Bar Association’s Section on Dispute Resolution. The purpose of Mediation Week is to increase the public’s awareness and understanding of mediation. This year’s theme is “Mediation in the Mainstream.”

Mediation has become a mainstream technique since I began practicing law. Thirty years ago, mediation was rare. Parties and their lawyers could settle lawsuits on their own, of course, and some judges held “settlement conferences” to encourage cases to settle, but independent trained mediators were not used very often, and lawyers did not learn about mediation or other forms of alternative dispute resolution in law school.

Typically, during those settlement conferences, the judge or a magistrate the judge appointed would browbeat the parties with the weaknesses of their position until they caved. I recall the settlement conference in one case in which I was defending a company against an individual plaintiff. The judge announced during the conference that the case should settle for $40,000. That was more than my client and I had valued the case at, but once the judge announced that figure, the plaintiff wouldn’t talk about any lower amount to settle. Trying the case would have cost far more than $40,000, so my client and I caved.

How does mediation help the settlement process?

Mediation Benefits the Parties:  

Cheaper: Mediation is much cheaper than litigating the case all the way through trial. Complex lawsuits can cost $10,000/month or more in attorneys’ fees. It isn’t unusual to see a large corporation spend over $100,000/month on a “bet the farm” type of case.

Even in run-of-the-mill auto accident cases, each side spends several thousand dollars to get the case to trial, sometimes more than the likely jury award. Often, it simply doesn’t make sense to continue a case through trial, but the parties need someone to help them resolve the matter in a way that they both can accept.

Speed: Mediation is faster than litigation.  Both parties may want some discovery prior to mediating, so they know something about the other side’s case. But typically the dispute can be mediated soon after the parties have exchanged basic documents and taken a few depositions.

In most civil cases that go to mediation, the parties later said they wished they had mediated sooner. After all, if the case doesn’t settle at the first mediation, the parties can agree to resume the mediation after additional discovery.

Control: The parties have more control over the outcome.  In a trial, the judge or jury decides what happens. In mediation, the parties are free to devise their own resolution of the dispute. Sometimes, they can agree to things the judge couldn’t give them – such as exchange of property, or reference letters, or other non-monetary remedies.

And the parties can set the terms for when payments and other exchanges will be made – the winning party doesn’t have to worry about executing on a judgement.

Mediation Helps the Judge:  

Preserves Impartiality: Mediation gets the judge out of pushing for settlement and preserves the judge’s impartiality. The judge can focus on the pre-trial and trial issues, without giving any indication of the strength of each side of the case, nor voicing an opinion on the value of the case.

Reduces Caseload: Plus, the more cases that settle during mediation, the less work for the judge to do. Most judges these days appreciate the value of mediation in reducing overcrowded dockets and streamlining their caseload. I don’t know of any judges who wish they could browbeat parties more into settlement. They are happy to require pre-trial mediation, and let the mediator try to settle it.

For all these reasons, mediation is a helpful process for both the parties and the court system. It preserves resources that would otherwise go to the lawyers, and leaves more resources available for the parties to use in resolving the matter to their own satisfaction. It is a good thing that mediation has become a mainstream tool in dispute resolution.

The Future of Mediation:

Mediation began in the context of resolving lawsuits, and that’s what I know the most about. However, mediation is moving beyond settling cases and into resolving other forms of disputes.

Mediation is now used to resolve school, neighborhood, workplace, and other forms of social disagreements. I heard one mediator joke that every neighborhood association needs a mediator on the board. It was said as a joke, but the person was only half kidding.

Will mediation move beyond the mainstream into everyday life? Or will we all learn mediation skills to  reduce the contentiousness of modern society? A pipedream perhaps, but who knows?

American Bar Association members can find more information at the Section of Dispute Resolution's website. A public source for information on mediation is the Building Dialogue blog.

Have you tried mediating a dispute you had? What did you like and dislike about the process?

Happy Labor Day from the NLRB to Nonunion Workplaces

The percentage of private sector employees who are union members is down to about 7%. Many nonunion employers think that the National Labor Relations Act, and the National Labor Relations Board that administers the NLRA, don't apply to them. But under the Obama administration, the NLRB is aggressively pursuing non-union employers and seeking to intrude on workplace policies.

The NLRB’s justification for its intrusion into nonunion workplaces is found in the broad language of Sections 7 and 8(a)(1) of the NLRA. Section 7 provides that employees have the right to "form, join, or assist" unions, to bargain collectively with their employers, and to "engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." Section 8(a)(1) of the NLRA states that it is unlawful for employers to "interfere with, restrain, or coerce employees" regarding their Section 7 rights.

It is likely that the NLRB will aggressively prosecute any employer policies that the agency believes will restrict concerted activity in nonunion workplaces. “Concerted activity” under the NRLA is extremely broad – it applies to any activity where two or more employees act together in furtherance of matters of mutual interest.  These matters of mutual interest can include compensation, benefits or a variety of workplace conditions.

“Concerted activity” comes into play any time an employee alleges he or she is working with another employee or on behalf of another employee. No union or employee representative needs to be involved; two disgruntled employees working together can be engaged in “concerted activity.”

Here are some specific policies and situations in nonunion workplaces that the NLRB is fighting:

• Retaliatory discharge.  See Family Healthcare, Inc., 354 NLRB No. 29 (2009), where a physician-employee claimed she was discharged in retaliation of her rights under the NLRA after she questioned the changes in contracts that she and her fellow employees were asked to sign, because she acted not only for herself but for other employees.  See also In Re Trompler v. NLRB, 338 F.3d 747 (7th Cir. 2003), where production employees walked off the job at a nonunion machine shop.  They had complained about their supervisor, which was found to be “concerted activity.” 

• Dispute resolution programs that condition employment on arbitration and prohibit employee class actions.  See D.R. Horton, 357 N.L.R.B. No. 184 (Jan. 3, 2012). Although this case is now on appeal to the Fifth Circuit Court of Appeals, the NLRB continues to pursue the theory in other cases.  See 24 Hour Fitness, Case No. 20-CA-35419, where the employer provided employees with an opt-out provision, but the NLRB still argues that the arbitration agreement is unlawful. In fact, in Advanced Services Inc., Case No. 26-CA-63184 (July 2, 2012), the NLRB even argues that the confidentiality of arbitration proceedings unlawfully chills employees' rights to discuss the terms and conditions of their employment.

• At will employment policies that suggest they can’t be changed through collective bargaining by a union. See American Red Cross Arizona, Case No. 28-CA-23443 (Feb. 1, 2012), where the employer’s policy provided that an employee's "at-will employment relationship cannot be amended, modified or altered in any way," and the NLRB found that such a policy interfered with employees' rights to form a union.

• Requirements that employees keep workplace investigations confidential. See Banner Health System, 358 N.L.R.B. No. 93 (July 30, 2012), where the NLRB said an employers' "generalized concern with protecting the integrity of [workplace] investigations is insufficient to outweigh employees' Section 7 rights." Basically, the NLRB ruled that "blanket" confidentiality rules are illegal, and an employer must justify confidentiality on a case-by-case basis.

• Restrictive social media policies. See Hyatt Hotels Corporation, Case No. 28-CA-61114, where the employer required employees to report "any known or suspected violations of [its code of conduct], including any violations of the laws, rules, regulations, or policies that apply to Hyatt." The NLRB said employers must permit employees to report employer violations via social media channels, rather than only to the employer.

• Notices in nonunion workplaces stating that employees have the right to unionize.  See Notification of Employee Rights Under the National Labor Relations Act, NLRB, Final Rule, published in the Federal Register on August 30, 2011, 76 Fed. Reg.  54,007. The effective date of this Final Rule was delayed until April 30, 2012, but in U.S. Chamber of Commerce v. NLRB, the U.S. District Court in South Carolina stayed these regulations.

• Requiring nonunion employers to permit employees to have a representative present during investigative meetings.  These so-called “Weingarten” rights have been pushed and retracted several times, depending on whether Republicans or Democrats control the NLRB.  Currently, there is no right for nonunion employees to have a representative present during inquiries, but under the current Democratic Administration, I suspect this right would be reinstated if a case were brought before the Board.

The only way a nonunion employer can avoid investigation and prosecution by the NLRB is to make sure before terminating an employee that that employee has not engaged in any activity of mutual benefit with other employees – i.e., that there has not been any “concerted activity” that could give rise to an unfair labor practice charge.

Moreover, employers must review their policies to be sure they don’t run afoul of policies that the NLRB disapproves of.  And they should be sure to follow all NLRB requirements regarding posters, employee representation, and what supervisors can and cannot tell employees.

Additional resources on this topic include NLRB Extends Reach To Nonunion Workplaces, by Jonathan C. Fritts, Ross H. Friedman and Doreen S. Davis (Morgan Lewis), and Avoid Violations of Nonunion Employees Under NLRA, by Gigi O'Hara (Kutak Rock), and a new book entitled NLRA Rights in the Nonunion Workplace,by Kenneth Lopatka (BNA).

Readers might also check the NLRB's webpage on protected concerted activity.

Favorite Firings – Next in the Series: Fired for Donating an Organ

Would you donate a kidney to your brother?

Here’s a recent Missouri case that makes me wonder “what was this employer thinking?” I don't think all terminations resulting from an employee’s medical issue are against public policy. But in most cases, showing a little compassion is the right thing for an employer to do. Managers should think long and hard before firing an employee with a serious medical situation.

The Facts: In Delaney v. Signature Health Care Foundation, No. 97419, 2012 LEXIS 694 (Mo. App. E.D., May 22, 2012), Norton, J., the Missouri Court of Appeals decided that Phyllis Delaney had been wrongfully terminated for taking time off to donate a kidney to her brother.

Ms. Delaney worked for Signature Health Care Foundation as a data entry clerk. When her brother needed a kidney transplant and she was a match to provide him with a kidney, Ms. Delaney told her employer that she would be off work for four weeks. According to Ms. Delaney’s allegations, Signature Health first approved her absence, then changed its mind three days before surgery and fired her.

Missouri is an employment-at-will state, which means that an employer can fire an employee for any reason, or for no reason, but not for an illegal reason. Missouri recognizes a “public policy” exception to the employment-at-will doctrine – an employer may not fire an employee for a reason that is contrary to well-established public policy in the state. Specifically, the Court of Appeals in Delaney said:

“Missouri Courts have recognized four categories of the public policy exception to the at-will-employment doctrine. Specifically, an employee has a cause of action when he or she has been discharged for: (1) refusing to perform an illegal act or an act contrary to a strong mandate of public policy; (2) reporting the employer or fellow employees to superiors or third parties for their violations of law or public policy; (3) acting in a manner public policy would encourage; or (4) filing a claim for worker's compensation. Hughes v. Bodine Aluminum, Inc., 328 S.W.3d 353, 356 (Mo.App.E.D.2010).” 

In her lawsuit, Ms. Delaney claimed that Signature Health had wrongfully terminated her employment in violation of Missouri’s public policy encouraging organ donation. Signature Health won a dismissal of the lawsuit in the lower court, but the Missouri Court of Appeals reversed.

Based on a review of several Missouri statutes, the Court of Appeals held that Missouri public policy does encourage organ donation. Therefore, firing an employee because he or she is an organ donor gives the employee a claim under the public policy exception to Missouri’s employment-at-will doctrine. Ms. Delaney deserves her day in court, according to the Court of Appeals, and she will now have an opportunity to prove that in fact she was discharged because she had decided to donate the kidney to her brother.

The Moral: Before managers decide to fire an employee, they should take a step back and think about how the termination would look to an outsider. I always told managers to ask themselves how the case would look in the newspaper, or if they were telling their mother about the situation. If you don’t want to explain yourself to the public or to your relatives, then the termination is probably not a good idea.

In this case, would any rational manager want to explain that they fired a woman because she was going to give her brother a kidney?

In addition, managers should consider whether there are any statutes or regulations that might support a public policy claim like in the Delaney case. If there is any question, talk to an attorney who specializes in employment law.

Ms. Delaney has not yet won her case. It might be that the employee’s absence in this case would truly cause the employer a hardship, and the employer might be able to prove that public policy does not require them to endure the hardship to support her organ donation. But Signature Health had better be able to prove some defense that overcomes the policy in favor of organ donation at trial. Could they not have hired a temporary data entry clerk for the work that Ms. Delaney would miss for four weeks?

In my opinion, they are facing an uphill battle in the court of law and in the court of public opinion. What do you think about this situation?

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I’m still soliciting ideas for stories on workplace terminations to publish. If you have an interesting situation, please email me or leave a comment below. But please disguise the facts to protect the innocent (and not-so-innocent) unless the situation is well-publicized, and then include a link to support your story. I will only publish verified stories.

Difficulties of Reasonable Accommodation under the Americans with Disabilities Act

I recently attended a webinar on the Americans with Disabilities Act (ADA), sponsored by the American Bar Association.  The primary points made during the webinar were

1. The amendments to the ADA passed in 2008 were designed to relax the definition of “disability.” Cases brought under the ADA should now focus more on whether the employer discriminated against the employee, and less on whether the employee is disabled.
2. Employers should be able to justify their attempts to accommodate the employee.  An employer should “stop; think; justify” any actions vis-à-vis a disabled employee.  This applies both to determining the essential functions of the job and to the discussion of reasonable accommodations to permit the employee to perform the essential functions.

One of the speakers during the webinar was Chai R. Feldblum, Esq., a commissioner with the Equal Employment Opportunity Commission (EEOC).  Commissioner Feldblum stressed that the EEOC does not want to preclude employers from getting their work done, nor reduce business productivity.  If an employer has its job descriptions in place that list the essential functions, and if the employer engages in an interactive dialogue with the disabled employee, then determining whether a reasonable accommodation is possible should be straight-forward.

My experience has been that the reasonable accommodation process is not as easy as Commissioner Feldblum makes it sound. Ideally, a reasonable accommodation can be found quickly, but often, the process is inexact and time-consuming.

Here are some of the problems encountered in finding reasonable accommodations:

First, there is the problem of keeping job descriptions up to date. In today’s workplace, jobs change quickly.  In a large company, it can be a full-time job for several employees to keep job descriptions updated.  And writing job descriptions is probably not the most efficient use of employees’ time – companies that seek to be nimble may not want to slow down to create job descriptions that will be out of date by the time they’re written.  Requiring that job description be written is one of the reasons lawyers and HR professionals get a bad name among managers, even when they point to the ADA as the reason for the requirement.

Second, while it is easy for an employer to say that a job function is “essential,” there are always other ways to get the work done. Since one possible reasonable accommodation is to “restructure” a job, an employer is always subject to being second-guessed on whether a particular job function is “essential” and need not be eliminated, or whether it is non-essential and the employer will have to find another way to get the function done, or do without the function.

Third, while the employer can set both qualitative and quantitative standards for acceptable performance, these standards are also subject to debate during the reasonable accommodation process.  If a leave of absence or a reduced schedule is a reasonable accommodation, then a production standard may need to be reduced along with the employee’s schedule.  How then will the employer get enough production out to satisfy its customers?

Fourth, the necessary accommodations of a disabled employee sometimes evolve over time, or require a good deal of experimenting to see what works and what doesn’t.  The attempts at accommodation may even be unsuccessful in the end, resulting in frustration for the disabled individual, as well as for his or her managers and co-workers. Sometimes the employee isn’t ready to stop working, even after many accommodations have been unable to get the employee back to a productive state.

These problems don’t even get to the issues that arise when the employee’s request for an accommodation is less than clear, when the employee doesn’t know what accommodation they think might work, or when other employees become upset at having their jobs changed because the employer is accommodating someone else.  For more information about the ADA, see the EEOC's website on disability discrimination.

The purpose behind the ADA is laudable.  The practice is often messy.  Even employers operating in good faith can find themselves in expensive litigation.  Who is to say what is “reasonable”? Even years of attempted accommodations may not be enough to satisfy the EEOC or a judge or jury.

What have your experiences with the ADA been? 

Favorite Firings – Third in a Series

I’ve received some suggestions from readers on “favorite firings” to feature in this series. Here’s another good one. This story involves a situation that could have been tragic, but ended up being humorous.

The Facts:  A married female employee (we’ll call her Ursula) was having an affair with a male co-worker (John).  Ursula’s husband (Karl – not employed where Ursula and John worked) found out about the affair.

Karl was drinking one evening at the local pub, and decided he’d had enough of Ursula’s behavior.  He brought his shotgun into Ursula’s workplace and shot the lock off the doors into her department.

When Karl saw John, he aimed at John and fired, but thankfully missed.  Karl's bullets did destroy the soft drink vending machine on the premises, however.

After shooting at John, Karl sobered up slightly and raced out to his pick-up in the parking lot.

By the time Karl left, other employees had called the police. Karl was still drunk enough when he reached his truck that his driving was not of the highest caliber. He drove straight into the police car that had just arrived at the parking lot and still had its siren blaring and lights flashing.  The police easily apprehended Karl after the crash.

The company decided to fire both Ursula and John, because of the disruption and danger their affair had caused.  No, they weren’t fired for the affair itself, but because it led to danger to their co-workers.

John moved on with his life (presumably without Ursula).  But Ursula sued her employer for permitting her to engage in what she called “extracurricular marital affairs.”  In a rare display of prompt justice in employment cases, the judge quickly dismissed the lawsuit.

As a side note, Karl also sued.  He sued the pub for letting him get drunk. His case was also dismissed.

Not much has been heard from Karl or Ursula since.

The Moral:  The point of this story is not to make light of workplace violence, which is a serious problem and often leads to tragedy.  This case could have ended with employees and others dead or wounded.

In this case, the employer incurred some legal risk in firing Ursula and John, because their affair was not work-related behavior.  However, the consequences of them mismanaging their private lives had an impact in their workplace, and endangered their co-workers.

Because the employer treated both employees the same, there was no gender discrimination claim.

Many employees do not take responsibility for their own behavior and deserve to be fired. Ursula’s reaction in filing a lawsuit blaming her employer for her affair clearly fits this category.

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Remember, if you have any ideas for stories to publish, please email me or leave a comment below.  But please disguise the facts to protect the innocent (and not-so-innocent) unless the situation is well-publicized, and then include a link to support your story.  I will only publish verified stories.