Resources

Presented for
The Colorado Defense Lawyers Association

 By

Kathryn E. Miller, Esq.
Littleton Alternative Dispute Resolution, Inc.
1901 W. Littleton Boulevard
Littleton, Colorado 80120
Katy@LADRmediation.com
303-798-2533

March 22, 2012

We cannot ensure equality of opportunity by vigorously enforcing the federal and state laws prohibiting discrimination in employment, while at the same time providing unfair or ineffective methods of dispute resolution. As a group of professionals, both lawyers and neutrals, we must demand that dispute resolution systems in which we participate actually be, and appear to be, fair, equitable, accessible, and effective.

1. I.HOW AND WHEN IS IT BEST TO GET TO THE TABLE?

It is an age-old question. How do you get the other side to the bargaining table, and when is it best to start trying? The answer is: “It depends.” It depends on the nature of the case, the quality of the information that is available early in the case, the temperament of the other parties and their counsel, and the willingness and ability of your client to go forward if the case does not settle. There are probably dozens of other factors as well.   However, since more than 95 percent of all employment cases settle eventually, it is never too early to start considering a resolution of the dispute. From the moment a client walks into your office, regardless of which side you represent, you should be thinking about how you can resolve the situation short of trial.

A.        What are the Client’s Goals?

It may seem obvious, but it is surprising how many people come to see a lawyer without a clear idea as to what they are seeking. It is even more surprising how many lawyers look puzzled when asked what his/her client’s main objectives are in pursuing a case into litigation. A major part of the lawyer’s task is to help the client understand what the available options are, and to prioritize his or her needs. Although compensation for lost wages is usually high on the list, it is sometimes revealing how far down the list money can be. For example, some employers don’t realize that one of the most serious problems that lies ahead for a terminated employee is how to explain to a potential future employer why he or she was terminated. Thus, one of the client’s goals might be to agree to a mutually agreeable explanation as to why he or she left the job, or a favorable letter of reference, with an agreement that the employer will say nothing that is inconsistent with the letter.

The employer may have goals other than just to make this go away. Perhaps it is important that the employee help train her replacement. Return of documents and equipment is usually on the list. Whichever side you represent, make a list of the client’s goals, and keep it up to date. Although determining the client’s goals at the outset is a key to a successful resolution of the case, the goals will change over the course of the case. As goals and objectives change, so does your settlement strategy.

B.        Try to Use the Administrative Agencies to Help Resolve Your Case Early

You can obtain important information that may assist in resolving the case early at administrative agencies. For example, where the employee has been terminated, you can use the claim for unemployment insurance (UI) benefits to great advantage. If the matter goes to a hearing, the employee can subpoena documents and subpoena witnesses to testify. Obtaining such information can help considerably in putting the case in a position to be settled. Clearly at the EEOC or the CCRD, both charging parties and employer representatives can use the administrative agency process to obtain information, learn about and understand the other side’s position, and keep an open mind about the possibility of resolution. The Agency will assist in presenting options for settlement or holding mediation.

C.        Why Don’t Cases Resolve Early?

Whether you take advantage of administrative agencies or not, your case may carry on longer than you or your client thinks it should. When your client has a strong position, it may seem obvious that the employee will back down or settle for a nominal amount. Yet cases can drag on, increasing costs and, potentially, exposure for your client. There are common reasons that cases do not resolve early:

1.         Both parties may have built-in fear of disclosing too much too early.

2.         You may lack access to important information.

3.         Emotions get in the way of rational decision-making. Employment cases are very emotion-driven, and there are usually angry and hurt feelings on both sides. The terminated employee may be experiencing panic, depression, and/or fear of the future which is still unclear and uncertain, particularly if the employee is still unemployed. On the other hand, the employer may be angry or feel betrayed by the employee’s performance or behavior.

4.         The economic damages are difficult for either party to estimate in early stages.

5.         Inexperienced counsel may make unreasonable discovery or monetary demands, or do not fully understand the risk of going forward with litigation, making it difficult for the parties to obtain enough clear information on which to make a decision.

6.         The employer may have a tendency to deny wrongdoing, circling the wagons around the alleged offending manager. Many terminated employees cannot or will not take responsibility for alleged poor performance.

II.        DESIGNING/SELECTING THE SETTLEMENT PROCESS

1. A.Types of Processes

1.         Court-imposed Settlement Conferences. In district and federal courts, many judges routingly impose mediation on the parties well before trial. However, note that due to recent changes in Local Rule 16.6, in most cases federal judges will no longer be authorizing the magistrate-judge to hold settlement conferences.

A primary advantage of court-ordered settlement conference is that there is no cost to your client. In addition Magistrate-judges generally have inherent credibility. These judges have considerable information on the state of the docket, the trial judge’s prior rulings that might affect the outcome, and the current trends of jury verdicts in this type of case.

Disadvantages to court-imposed settlement conferences include that the cases usually receive a limited amount of the court’s time. In addition, many employers appear at the conference only through their attorneys.

2.         Private Mediations. At any point in your case, you may propose private mediation and schedule it in cooperation with the opposing party. The parties participate voluntarily and pay for it, making the out-of-pocket expense the greatest disadvantage. In addition, a private mediation may for whatever reason not have credibility with one of more of the parties, but you can address that by selecting an experience, well-respected neutral with the involvement of your client.

Advantages include the fact that the mediator has plenty of time for your case and will review the materials submitted in advance. In addition, the parties have leeway to design the process themselves.

3.         Miscellaneous. Other choices include less-popular methods such as early neutral evaluation (Local Rule 16.6), med-arb, mini-trial, special master, summary jury trials, and anything else that the parties can create.

B.        Through Negotiations, You Can Resolve Interim Issues

Keep in mind that through a negotiated process, the parties can creatively move the case in ways not practicable through the court system. Do not limit your options to a resolution of the full dispute. Or consider a multi-step negotiation process. For example, think about whether the mediation process overall would be more effective if one party or both produced information yet to be discovered through an agreement which would not prejudice their rights in court if the case does not settle. In many cases, an early mediation can effectively move forward with limited pre-mediation discovery monitored by the mediator.

Perhaps the employee has not yet produced the medical records that establish the claim for emotional distress, but the records are available. In exchange for certain personnel records from the employer, the employee might agree to produce the medical records. Perhaps the mediator could speak to the mental health provider to obtain unfiltered information as to the extent of the injury. In some cases, there is a dispute as to what a key witness will say, but he has not been deposed yet. Consider whether it would help the process if the mediator could speak to the witness. There are an unlimited number of options that can be utilized in private mediations that are essentially unavailable through the court system. The important point is that the mediation process belongs to the parties, and counsel are remiss if different processes are not considered. Other factors to be considered include the cost, and who is paying the cost; how far along the case is; whether opposing counsel know each other, and how experienced they are; and how sophisticated the parties are with the litigation process.

III.       SELECTING THE RIGHT NEUTRAL

1. A.Employment Cases Present Unique Challenges

Employment cases are not about business partners who changed their minds, or strangers who ran into each other under a traffic light. One does not work an employment case by reconstructing the scene of an accident, by measuring skid marks, or by reviewing architectural designs and daily progress reports on a construction site. Employees who believe that they have been treated wrongfully in the workplace, e.g., discriminated against on the basis of their gender, race, age, disability or other grounds, or just treated unfairly, do not simply believe it to be so. They feel it is so. They feel it with every fiber of their being. They feel that they are entitled to their day in court and they want their case to hit the front pages of every newspaper in town. Similarly, employers do not appreciate being labeled sexist, or bigoted, or unfair in their treatment of employees. They are often worried about causing “the flood gates to open” if they settle a case they feel has no merit. Consequently, employers take such allegations personally.

Employment cases are about careers, about rejection, and about volatile issues such as sexual harassment. They are about relationships, families, trauma, and depression. These cases are about values and human behavior. Thus, in order to maximize the success of mediation as an effective form of resolving employment disputes, you must consider carefully who will understand the perspectives of both the employer and the employee. Select someone as the neutral who can develop methods to bring the parties to a consensus in the resolution of the case. It is because emotions run so high in employment cases, that makes them uniquely suited to resolution through mediation.

The term neutral is difficult to define in this context. Clearly, everyone involved brings to the table their backgrounds, experiences, biases and judgments. People naturally view issues differently, observing the same facts from various vantage points. The mediator must be objective, independent, and open to new or different situations. It is important that the mediator understand the perspectives of the employee, co-employees, supervisors, managers, and senior management. Bear in mind that the essential qualifications of a mediator may be very different from those identified for an arbitrator. What we are looking for in a mediator is someone who understands the legal issues, but also the environmental issues, the psychological issues, and the workplace issues.

1. B. All Private Mediators Are Not Alike

The range of mediations and mediator styles is broad indeed. Some mediators never allow the parties to see each other during the day unless and until the case is resolved. Other mediators believe that, except in the most unusual case, perhaps a case involving abusive sexual harassment, the parties should never be separated. Some mediators never talk to the parties until the date of the mediation. Others prefer to discuss with the parties and counsel the key issues in the case prior to the mediation date. Some mediators are facilitative, that is, they do not opine as to the merits of the case. Rather, they work the parties toward a consensus by focusing on the needs of the parties, not the issues in the case. Other mediators are evaluative, that is they review the factual and legal issues in the case, and bring to bear their experience as to how the case may end if tried in court. In this way, evaluative mediators persuade the parties to compromise their positions to avoid the exposure and the risk of losing the case at trial.

Not all cases demand the same style. Counsel should discuss with their clients what they hope to accomplish in the mediation and what type of mediation format will best facilitate the result. What does the client need from the process? Is the employee afraid to see anyone from the company, or does he or she need to address the President of the company and tell him what went wrong? Does the client need to speak to the decision-maker about how the termination affected him? Does the employer need to share with the employee his or her feelings of betrayal? Can the employee handle such a confrontation?

IV.       PREPARING FOR THE NEGOTIATION PROCESS

A.        What Information Should You Give to the Mediator?

Again, not all mediators are the same in terms of what kind of information they want from the parties. If you are using a facilitative mediator, he or she will probably prefer that the parties not provide lengthy written materials that deal with the evidentiary issues and factual disputes. On the other hand, if the parties are using a mediator whom they expect to evaluate the claims and defenses, more information is far preferable to less. Be prepared to provide copies of relevant documents, deposition testimony, and pleadings. Do not leave back at the office the documents that could help illustrate the point you hope to make with the mediator.

B.        Your Credibility is the Key

The key to effective negotiation is to enhance your credibility and that of your client with both opposing counsel, the principals of the employer, and the mediator. It is critical to analyze your case, factually and legally, and to articulate not only the strengths of your case, but the weaknesses as well. Analyze your opponent’s case too, and be forthright in describing its strengths and weaknesses. It is not a sign of weakness on your part to recognize a problem in your case. You can acknowledge it, then establish how you intend to overcome that weakness. Attempting to cover it up, or ignore it, will only serve to diminish your credibility.

C.        Provide Input as to Who Should be Present

1.         An individual plaintiff may want support at the negotiations from, for example, a family member, fellow parishioner, or mental health professional. The defendant should have no objection to the presence of a third party, but may seek to have a confidentiality agreement signed by that third party. If there are multiple plaintiffs, counsel for both sides should consider in advance whether offers of settlement to one plaintiff must be confidential as to the other plaintiffs.

2.         The key for defense counsel is to bring to the negotiation session those who will assist in settlement, not detract from it. If you intend that the mediator will evaluate the case, it may be beneficial for the mediator to see the key witnesses and decision-makers. The mediator may ask the plaintiff if there is someone that he or she feels would assist settlement, or to the contrary, be detrimental to the process, and communicate this to defense counsel. The mediator will want to have the person with “authority” to settle the case at the table. Insurance adjusters often prefer to be “present” by phone. This is not ideal but if it is necessary, make sure the mediator is aware of it.

3.         Consultants. If a structured settlement is likely, it is helpful to have the necessary experts available by phone to compute the annuities and other possible structures. Be sure that you understand the tax consequences of your settlement, or have someone available by phone who can explain it. For example, will your client who is receiving social security have a problem with a settlement if it is allocated as wages? Are there medical benefits that will have to be paid back if the settlement includes emotional distress damages? Can an annuity be purchased for the minor child of the plaintiff, and what are the tax implications of doing so?

D.        Preparing Your Client for the Mediation

This is perhaps the most critical piece of preparing for the negotiations, but lawyers too often put too little effort into preparing their client. Remember, in most cases, your client has never gone through something like this. Take the necessary time to be certain that your client understands the purpose of the mediation, and the mediator’s role. Spend the time to explain the format of the process and what is likely to happen. Make no assumptions that your client understands this even if you represent sophisticated management.

It is critical that your clients understand the legal and factual weaknesses of your case. Tell your client that it is important to discuss weaknesses of your case with the mediator. Never overstate the chances of winning at trial. Carefully explain to your client the realistic calculation of damages, costs and attorneys fees if the plaintiff wins.

Resist the temptation to assume that terms of settlement are “standard.” Terms that you want to include may be acceptable to the plaintiff ultimately, but counsel should not assume that they are without discussion. Be sure your client understands this.

Never minimize the emotional experience that your client will go through during a mediation, regardless of which side you represent. Recognize, too, the adage that a successful mediation is often one in which both parties leave feeling a little unsatisfied. Prepare yourself and your client for this predictable reaction by emphasizing the “spirit of compromise,” and the elimination of risk that settlement brings.

Prepare your client to participate in the mediation. They need to know what will be expected of them. This process is not like a deposition, where you have counseled your client to narrowly construe questions, never volunteer information, answer only the question asked, etc. Mediation is a totally different process, and your client needs to clearly understand that.

V.        HOW TO MOVE BEYOND IMPASSE

What is an impasse?  In Webster’s Dictionary, it is defined as “an impassable road or way;” or “a predicament affording no obvious escape.”  What do you do when you have reached an impassable road or way?  You look for ways to go around it.  What do you do when you are involved in a predicament affording no obvious escape?  You look for the less-than-obvious escape.  Rely on your mediator to offer ways around the impasse.  Be creative yourself in finding the less than obvious escape.  Do not give up.

Perhaps the parties need to speak to each other without the lawyers (I would not allow it without the mediator being present except in a rare and exceptional case).  Perhaps they need some time to explore options away from the negotiations, and then reconvene.  Perhaps they need to find another way to get the costs paid, or maybe in a case where subrogation of medical expenses is an issue, there is a way to negotiate with the third-party provider of those medical services.  There are an unlimited number of solutions.  You must be driven by the singular desire to resolve the case, and you will be able to move around the impasse.

If the case does not settle, do not leave the negotiations angry.  Counsel and the parties should continue to keep the settlement door open for future negotiations.  Conducting yourself professionally, responsibly, and courteously is the best approach.  You never know what will happen in your client’s life that will change his or her settlement needs or ability to settle.  Never burn the bridge.  Dispute resolution is, after all, the reason your client sought assistance from you in the first place.  Going to trial should be the last resort.  Counsel must adjust their advocacy skills to the dynamics required for the effective presentation of their client’s cases for settlement.

VI.       CONCLUSION

Given the emotions that often drive both sides in employment disputes, the toll disputes can take on company morale and productivity, and the inherent costs in litigation, mediation is often an excellent tool that is used skillfully and effectively by many defense counsel. Knowing your client’s goals, taking advantage of administrative agencies first when possible, and maximizing the flexibility that mediation affords put you in a strong position to resolve employment disputes well before trial.

Presented for the
Boulder County Bar Association Elder Law Section
February 7, 2012

By Kathryn E. Miller, Esq.

Littleton Alternative Dispute Resolution, Inc.
www.LADRmediation.com
303-798-2533

A member of
The Elder Mediation Alliance
www.eldermediationalliance.com
303-225-2705

Enhancing Capacity Through Accommodations

The parties are all present for the mediation of the family conflict involving what to do with Mom…the adult siblings seem to be connecting and cooperating, but something seems off a bit…Mom appears to be confused…she is too quiet…does she understand? Can she hear? When her kids all talk at the same time, she seems to withdraw.

As mediators, it is our responsibility to ensure that all parties are able to access mediation services. When performing services in the elder law arena, mediators should be familiar with the guidelines developed to provide direction when parties include persons with disabilities.

The Americans with Disabilities Act (ADA) Mediation Guidelines[1] were developed between January 1998 and January 2000 by a national work group comprised of mediation practitioners, trainers and administrators. The Guidelines address mediation of claims arising under the ADA[2] and other disability-related civil rights statutes, such as the Rehabilitation Act of 1973. Adherence to the Guidelines is voluntary, but doing so will indicate to the parties and their counsel that you have familiarity with such issues and a commitment to high quality mediation services when one or more of the parties has a disability.

According to the Guidelines, capacity to mediate means that the parties are able to understand the process and the options under discussion and to give voluntary and informed consent to any agreement reached. The mediator must determine whether the parties have the capacity to participate. In doing so, however, a mediator should not rely solely on a party’s diagnosis or medical condition to determine capacity to mediate; rather, the question of capacity should be evaluated on a case by case basis.[3] An adjudication of legal incapacity is not necessarily determinative of capacity to mediate. However, a mediation agreement signed by a person without legal capacity may require co-signing by a surrogate to ensure its enforceability.[4] The mediator should ascertain that a party understands:

a.  the nature of the mediation process,

b.  who the parties are,

c. the role of the mediator,

d.  the relationship of the parties to the mediator, and

e.  the issues at hand.

Capacity is a decision-specific concept. For example, an individual may be able to participate in decisions involving her living arrangements or health care, but not her financial responsibilities. The mediator must make efforts to ensure that all parties have a voice in the process to the greatest extent possible, bringing in surrogates when necessary.

There are a number of red flags for which the mediator should be watching that may indicate that one or more of the parties are struggling to understand the process. Pre-mediation conferences may be very helpful in identifying that there is a problem. Ask yourself questions like do they understand how the process works? Can they clearly and effectively communicate with others? Are they asking important questions that you would expect, or if a question is asked, does it make sense in the context of the discussion? Can they describe their own goals for the process? Are they unusually quiet or do they appear to be withdrawn? If it appears that one of the parties is not fully tracking, then you need to take a step back and explore whether there are obstacles to full participation.

Individuals with indications of impaired or diminished capacity may still be able to participate in making decisions that impact their lives. In establishing rules of responsibility for attorneys, the Colorado Supreme Court has declared that “a client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client’s own well-being.”[5] The key is to determine to which issues the person has the capacity to give input, and then to make accommodations to their sensory and/or cognitive needs so that they in fact can be actively involved. In the process, you will engender a more trusting relationship in which you will gain the confidence of the individual participants.

Caution: Although it is normal for individuals to have increased physical limitations such as decreased hearing or vision as they age, do not assume that they have cognitive impairments just because they are aging. We must resist the inclination to allow “ageism” to influence our judgments about capacity. But if you do identify reasons to believe they do have such impairments there is much that you can do to make your office and your mediation approach “elder friendly” and accessible.[6]

A. Take your Time to Build Trust and Confidence[7]

1. Upon introduction, break the ice. Talk about areas of common interest such as the weather, sports, recipes, children and grandchildren.

2. Spend a few minutes alone with the person with potential diminished capacity. If the person is more comfortable with a friend or family member in the room, allow that person to attend but try to encourage him or her to take a back seat, allowing the person with diminished capacity to speak for herself.

3. Slowly describe how the process will work, and what the expectations are for the parties.

4. Emphasize the confidentiality of the process. This is tricky in multi-party family affairs, so focus on the fact that resolution means you will stay out of the public courtroom, and keep it within the family.

5. Assure the individuals that they will retain control of the matters at issue and have input into the outcomes.

6. Encourage maximum participation and give assurance that the individual will be given plenty of time to think and process and consider the options. Conduct multiple shorter sessions to allow for increased processing time.

7. Speak directly to the individual rather than speak about him/her. This reflects respect for and value of the individual.

8. Use encouragement and verbal validation of his/her feelings.

9. Take more time than you might otherwise. Make sure all participants understand that the process is for all of them including most importantly the person with potential diminished capacity. Everyone must be encouraged and reminded to give the person time to speak even if it requires a great deal of patience.
B.  Accommodating Cognitive Impairments

1.   Begin with simple questions requiring brief responses – you must assess understanding and determine the right pace of proceeding.

2.   Recognize that you may have to proceed at a slower pace.

3.   Allow extra time for responses – stay patient.

4.   Break information into smaller, more manageable segments.

5.   Discuss one issue at a time, do not jump from issue to issue.

6.   Adapt method of communication to allow time to gradually make decisions.

7.    Provide cues to assist recall.

6.   Repeat, paraphrase, summarize, clarify, and check in periodically for comprehension. Even when people say they understand, they may have incomplete comprehension. This is more pronounced among older adults who have low vocabulary or education levels. Ask the parties to repeat or summarize from time to time to ensure everyone is tracking.

7.    Provide corrected feedback when misunderstanding or incomplete understanding is identified

8.    Provide summary notes and information sheets to facilitate later recall, including key agreements, decisions yet to be made and agenda for next session.

9.    Schedule appointments for times of the day when the individuals having difficulty is at peak performance – mornings are often best.

10.   Be sure to provide adequate rest times.

11.   Schedule multiple shorter sessions.

12.   Don’t be tied to your conference room location, especially if the individuals would be more comfortable at their home.

C.   Accommodating Sensory Challenges

Increased hearing and visual difficulties are common for all of us as we age. Sometimes an older adult will pretend that he knows what is under discussion or become socially withdrawn, even depressed, when he suffers hearing impairment. Sensory challenges should not be confused for mental impairment, although symptoms may look similar to the outsider.

To address hearing loss, encourage all participants to do the following:

1.   Minimize background noise.

2.  Look directly at the older adult when speaking.

3.  Speak slowly and distinctly.

4.  Do not over-articulate or shout as this can distort speech and facial gestures.

5.  Use a lower pitch of voice – the ability to hear high frequency tones is the first and often most severe impairment.

6.  Arrange seating to be conducive to conversation with the person with diminished capacity.

7.  Liberally use written communication, such as flip charts and white boards.

8.  Provide written summaries at the end of each session. Perhaps designate one or more of the participants to help create these summaries.

9.  Ask if auditory amplifiers would be helpful.

To address vision loss:

10.  Increase lighting, but use soft lighting to reduce glare.

11.  Have person face away from the windows or cover windows.

12.  Do not use glossy print materials.

13.  Use larger print and double space on your documents.

14.  Give people more time to read documents or even provide them in advance.

15.  When shifting between reading and viewing objects at a distance, give the individuals plenty of time to adjust and refocus gaze.

16.  Be aware that the individual’s field of vision may be more narrow than you are used to – he may see only what is right in front of him.

17.  Have reading glasses and magnifying glasses available on the conference table.

18. Arrange furnishings so that pathways are clear for those with visual or physical limitations.

Mediators have an obligation to the profession and to their clients to follow best practices for ensuring that all individuals involved in mediation are fairly included, regardless of disability or age-related conditions. Mediators should assess participants’ capacity on a continuous and case-by-case basis and should not rely solely on a party’s diagnosis or medical condition to determine capacity. These simple techniques will increase your credibility with the parties, enhance the participation of those with diminished capacity, improve the quality of the mediation process for all, and uphold standards for the elder mediation profession.

[1] http://www.mediate.com/articles/adaltr.cfm
[2] (42 USC §12101 et seq.)
[3] Guidelines at D(1)
[4] Guidelines at D(2)
[5] Colo. RPC 1.14 Cmt. [1].
[6] We must also be alert to ethnic and cultural factors that might be a barrier to communication, subliminally affecting perceptions of client abilities and behavior.
[7] Many of these concepts are discussed in Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers, published in 2005 by the ABA and the APA. It can be downloaded as a .pdf at http://www.apa.org/pi/aging/resources/guides/diminished-capacity.pdf.

Presented by

Kathryn E. Miller
Littleton Alternative Dispute Resolution, Ltd.
1901 W. Littleton Boulevard
Littleton, Colorado 80120
303-798-2525
katym@m-s-lawyers.com

Issues involving older adults[1] will be very emotion-driven, and there may be angry and hurt feelings coming from various directions. There are a lot of stories and articles about our “graying” population, but perhaps the bigger story is the psychological and emotional crisis among the adult siblings who are in conflict over issues involving their parents. According to the 2009 survey conducted by the National Alliance for Caregiving in collaboration with AARP,[2] there are an estimated 43.5 million adults in the U.S. looking after an older relative or friend. Almost half of those surveyed said that they felt they had no choice but to assume the role and nearly 90% said the burdens are not split equally among all family members. Three-quarters of those surveyed stated that they were working while providing care, and two-thirds of those respondents indicated that employers were asked to accommodate their schedules. Siblings are often spread out geographically and separated emotionally. Often the spouse and children of the siblings will also play an important role in these family conflicts. And to make matters more complex, there are an increasing number of families in the U.S. with extended family members (e.g. step-children) with high interest in the issues.

When one or both of the parents is suffering from some form of dementia, the issues for the caregivers compound geometrically. Conflict often arises when the parents give different information to the children about how they are doing and what they need. Mom may put on a good show for her out-of-town son who comes to visit, who then does not understand why the local sibling is so alarmed about her condition. One sibling may want a parent to move into an assisted living unit while another sibling or the parent may want the parent to remain independently at home. There may be fear and worry over the financial issues of the decisions, and confusion about how the “system” works. As difficult as it is, siblings must come together to help Mom and Dad decide how and where they will live the final years of their lives.

It is not unusual for these matters to end up in court, often in the context of a contested guardianship or conservatorship proceeding. Litigation is costly, both financially and emotionally. Court-rendered decision will often leave at least some, if not all, of the parties, dissatisfied.

Mediation is an alternative process for conflict resolution that provides a number of advantages over going to court. The parties retain control over the resolution of the disputes. Mediation is less expensive and faster than a court proceeding. Mediation is a confidential proceeding conducted in a less intimidating environment. Solutions can be creative and much more suited to the needs of the parties than what the court might be empowered to order.

There are a number of threshold issues to consider and discuss when considering the mediation process to resolve these matters. Depending on the complexity of the matter, strategies can be developed to foster productive outcomes.

By Kathryn E. Miller
(Katy@LADRmediation.com)
at the
National Employment Lawyers Association Spring 2012 Seminar
March 16-17, 2012
Seattle, Washington

Attorneys representing clients in employment disputes should consider using related proceedings before state or federal agencies to obtain key information that they can later use in arbitration. The most common proceedings include a hearing before the unemployment appeals board, or proceedings at the EEOC or your state’s Fair Employment Practice Commission. Particularly where you may face an arbitrator who wants to limit discovery, using these early and more informal proceedings to obtain documents and potentially sworn statements can prove to be invaluable to your case.

A.        Division of Labor Hearings

Where the employee has been terminated, you can use the claim for unemployment insurance (UI) benefits to great advantage. If the matter goes to a hearing, the employee can subpoena documents and subpoena witnesses to testify. It is frequently the case that employers are not as prepared for the UI hearing as the employee is, or is using a third-party vendor to handle its UI hearing. This can present a considerable advantage to the employee in the later arbitration proceeding.
1.      Documents
You are not guaranteed to obtain documents that go beyond the strict boundaries of the “reason for separation.” Referees do not like to expand the hearing beyond the statutory exceptions to benefits. As such, the referee may deny your request for subpoena. However, you should get the documents you need if you can relate the request to the reasons for termination. If used properly, this can be a great opportunity to obtain discovery of documentary evidence that you can later use in the arbitration.

2.         Testimony
It is surprising how often employers are not prepared for the cross-examination of witnesses at a UI hearing. This is an early opportunity to obtain testimony taken under oath, and
can be preserved by ordering the transcript. Imagine cross-examining the decision-maker, the HR manager, or other managers within 45 days of the termination! You can walk them down the path you want them to go before they know what is happening. At the very least, you will be in a good position to describe your discovery needs to the arbitrator at the pre-hearing conference based on what managers have already said.

BEWARE!! UI hearings are typically tape-recorded by the Agency, and there may be a short time period before the tape recording is destroyed, so order the transcript quickly following the decision.

B.        EEOC or State Fair Employment Practice Commission Proceedings

The EEOC and the State Fair Employment Practice (FEP) Commissions offer opportunities to begin early discovery whether in court or arbitration. Much more can be done at this level than simply preserve the client’s rights and exhaust administrative remedies. Particularly in arbitration, where the arbitrators may agree with employers to limit discovery, counsel should aggressively pursue discovery at the Agency proceedings. Both charging parties and employer representatives can use the administrative agency process to obtain information, learn about and understand the other side’s position, and look for opportunities for resolution.

1.  Relevant Information May be Learned During the Agency Proceedings

The charging party and the party’s lawyer may learn or receive important information that allows them to more fully understand the claim being pursued in the administrative agency. Among the documents that may be sought and obtained at this stage are:

• The employer handbook and other policies and procedures;

• The complainant’s personnel file, including performance evaluations and other documents which relate to any performance deficiencies;

• The employer’s stated reason for the adverse employment action;

• Information related to possible defenses such as the number of employees or a joint employer situation;

• Prior complaints of a similar nature maintained by the HR department;

• Affidavits which are often prepared by employers in connection with these agency matters which could be very helpful to the employee and counsel in evaluating the claim, particularly where arbitrators may limit the number or length of depositions, and

• Comparative data on who was similarly disciplined with age, race and gender information.

The information flow is not one-way. The employer may ask for important information during the Agency proceedings, as well, such as:

• Letters or statements obtained by the charging party that describe witness observations;

• Notes or diaries created during employment that reflect relevant information;

• Affidavits or other information related to whether similarly situated employees are expressing similar concerns about a manager or division of the employer, and in fact, the employer may learn whether it should be concerned that others may ultimately join the action;

• The employee may be asked to produce medical records or a medical report that supports his/her claimed emotional damages, and

• Other evidence related to damages including efforts to find subsequent employment.

2.         Mediation or Settlement Conferences
State agencies as well as the EEOC may transmit the charge to the employer with an invitation to the parties to participate in mediation. This process provides the parties with an opportunity to resolve the claim prior to an investigation or litigation. The mediation conference is another opportunity to learn information that may assist in prosecuting the matter at arbitration or in some cases cause the matter to be resolved.
Upon a finding of probable cause, a mandatory conciliation conference will normally be held. The agency will assign a different staff member to the conciliation conference than the investigator. This provides another opportunity for the parties to discuss important factual information and provide a basis for “discovering” information that could be useful in the arbitration. Even if there are other state-law claims pending in the arbitration, which the Agency does not have jurisdiction to discuss, the conciliation conference is a great opportunity to share further information. For example, the employer can learn more about the employee’s efforts to mitigate damages. The employee can learn relevant information such as whether and by whom she has been replaced, whether others have been laid off, whether new positions     have been created. The employer should consider the advantage of sharing this information at this point in order to facilitate resolution.

C.  Other Ideas from the Audience

How have you used early Agency proceedings to your advantage?