Southern California Arbitration Mediation and Conflict Resolution : Settle it Now Dispute Resolution Services : Serving Los Angeles, Beverly Hills, Century City : Settle It Now Negotiation Blog

Here's a copy of the Judgment Confirming Final Arbitration Award.

Comment later.  In the meantime, Money Money Money from Cabaret.

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This article (Relationships are Key in Job Searches) flogging this book (Whacked Again! Secrets to Getting Back in the Executive Saddle) landed in my email box from law.com this morning.

I have to say that I agree with magazine mogul Tina Brown that we're in a "gig economy" not a job economy.  What does that mean?  It means doing an inventory of your dreams right next to a realistic assessment of your skills, along with a time line for getting your own business up and running, with or without investors, remembering that in a "gig economy" barter is a perfectly acceptable alternative to cash and in the age of the internet (Networking Wisdom in Mentoring Circles) hundreds of marketing tools that can reach millions of people globally and thousands of people locally, are right beneath your fingers on the keyboard connected to the computer that brings you the most exciting set of opportunities since we decided to send men to the moon -- social networking (now there's a proper run-on sentence, the reward for which is buying myself a new copy of Elements of Style which every job-seeker and new entrepreneur should do post-haste since written communication is the key to successful online business development). 

That said, for those who NEED A JOB RIGHT NOW to pay off their law school loans (remembering that dischargable or not, we no longer have debtors' prisons), here's today's Law.com advice:

The book gives a 12-step plan for landing a new job: 1. finding passion and creating vision; 2. creating a brand; 3. creating a value proposition; 4. creating stories; 5. developing a marketing plan; 6. getting a message out; 7. creating a marketing document; 8. meeting the friend's friend; 9. power résumé; 10. preparing for an interview; 11. negotiating terms; 12. landing the job; and the next step.

The book emphasizes the importance of keeping up contacts after landing in a new job -- knowing that another may search may be ahead. But it suggests maintaining contacts by looking for ways to help other people with a "pay-it-forward" approach. "We all need help at some point," the book says. "The concept is that you are thankful for those who helped you in the past."

Villwock told the group that in his experience, the most successful CEOs and other professionals are those who are most passionate about their work. "When they stop having fun, that's when they stop and go on to the next job," he said.

He also advised the group that attitude and personal skills are as important as professional credentials. From observing executives, he said, "half their success has nothing to do with performance on the job. It has everything to do with ability to sell themselves and build trusted relationships."

If you substitute business plan for power résumé and starting the business for landing the job, you've got a perfectly great recipe for engaging the gig economy eagerly awaiting your contribution.  Listen up!  You didn't get the highest PSAT and SAT scores, graduate cum, magna or summa, ace the LSAT, study your $#@% off, learn lawyering skills, conquer your fear and pass the bar exam to be hat in hand looking to be someone's apprentice galley slave. 

Think about it and join the rest of the gig economy. 

We're looking forward to your unique and valuable contributions to the new economy right now!

The writing on the inside of the secret entrepreneurial decoder ring?  MONETIZE EVERYTHING!

AND WOMEN!!  JOIN THE PROFESSIONAL WOMEN'S NETWORK OF SOUTHERN CALIFORNIA.  WE'RE ONLINE NATIONALLY AND "ON THE GROUND" LOCALLY.

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Check out Steve Mehta's recent post at Mediation Matters -- Negotiations Today Could Haunt You Tomorrow, once again confirming that the human interaction during the negotiation is more important to long term satisfaction with the deal than the raw economic benefit achieved.  As Mehta explains, a recent study reported Curhan, J., Elfenbein, H., Kilduff, G. Getting Off on the Right Foot: Subjective Value Versus Economic Value in Predicting Longitudial Job Outcomes From Job Offer Negotiations in the Journal of Applied Pyschology, 2009, V. 94, No. 2, 524-534 (.pdf)

found that the satisfaction with the experience the employees had during their job offer negotiations significantly predicted compensation satisfaction, job satisfaction, and turnover intention one year later.  By contrast, the actual economic value – meaning the value of the compensation package — achieved in the negotiation had no association with job attitudes or intentions to leave.

Interests In Employment Litigation

Just as the quality of the pre-employment relationship colors the entire workplace experience, so will a negative termination color the employee's retrospective view of the employment experience, thereby increasing the incidence of litigation.

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If you're worried about your law job becoming -- as they say in Britain - "redundant" or if you've already been laid off due to the recession, join Lawyer Connection which was born today as the result of a twitter conversation I had with Gwynne Monahan (who you can follow @econwriter).

Here's an exploration of what a mutual aid group is from the viewpoint of a social worker -- which speaks to me because I lived through my first husband's MSW in Social Work studies before he lived through my Law School experience (an eventual relationship-killer). 

Visit Lawyer Connection

From Andrew Cicchetti's Mutual Aid Based Group Work blog:

Mutual aid as group work technology can be understood as an exchange of help wherein the group member is both the provider as well as the recipient of help in service of achieving common group and individual goals (Borkman, 1999; Gitterman, 2006; Lieberman, 1983; Northen & Kurland, 2001; Schwartz, 1961; Shulman, 2006, Steinberg, 2004; Toseland & Siporin, 1986). The rationale for cultivating mutual aid in the group encounter is premised on mutual aid's resonance with humanistic values (Glassman, 2002) and the following propositions: 1) members have strengths, opinions, perspectives, information, and experiences that can be drawn upon to help others in the group; 2) helping others helps the helper, a concept known as the helper-therapy principle (Reissman, 1965) which has been empirically validated (Roberts et al, 1999); and 3) some types of help, such as confrontation, are better received when emanating from a peer rather than the worker (Shulman, 2006). Mutual aid transactions that occur amongst and between members stimulate cognitive and behavioral processes and yield therapeutic, supportive and empowering benefits for the members (Breton, 1990;Northen & Kurland, 2001; Shulman, 1986, 2006).

Obviously, we're not pursuing the therapeutic benefits of a mutual aid society as social worker Cicchetti is.  Having been a member of such a group (a community-based women's credit union in the early 1970's for instance) I can say that the experience is not only economically, but also personally, enriching.

Let's not wait for the economy to improve.  Let's start improving it TODAY.  We are the change we want to see in the world. 

JOIN US!!

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Hat tip to

for introducing us to the extremely multi-talented

.

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British mediator and blogger Justin Patten (Human Law) has a terrific piece in his ezine today entitled Conflict is inevitable, combat is optional – how to negotiate without falling out.  Justin responds with sympathy to a recent survey calling his fellow Brits "the angriest nation in Europe," noting that the

wave of redundancies sweeping across the nation is forcing a number of employers, employees and their advisors such as lawyers and trade unions into conflict situation. As customers become slower and slower at paying added pressure is created for their suppliers and relationships become strained.

Because the "approach taken by those involved and their attitude in dealing with the conflict will have a significant impact on the outcome and the costs involved in finding a solution," Justin provides the following easy to implement solutions:

1 Avoid macho posturing – In an attempt to hide the weakness of their position some people are all bluff and bluster in conflict situations. . . . . (more)

2 De-personalise problems – My experience of disputes is that often things can happen due to personal issues between the individuals. It can be difficult to take the personalities out of a matter but believe me there are clear benefits. . . . (more) 

3 Focus on your own emotions – In many work environments there are unwritten rules that emotions are not to be expressed. Is this really wise?  . . . (more)

4 Listen – Effective communication starts with the speaker taking responsibility for understanding the language, perspective and experiences of the listener. . . . (more)

5 Analyse the Conflict – Research on problem solving indicates that the effectiveness of solutions increases significantly once the real problem is identified. . . . (more)

Justin Patten handles conflict for a living and whilst as a litigation solicitor he is familiar with the combat zone of the court room he much prefers to work with clients to achieve mediated solutions through negotiation and agreement. Contact Justin on 0844 800 3249 or email Justin here.

Further reading:

Negotiating for Excellent Results

Human Law Mediation has just published a new White Paper – Negotiating for Excellent Results – which contains advice and tips on how to negotiate with power and persuasion in conflict situations. You can download a PDF version of the White Paper here.

Keeping Away from Court Room Battles and Employment Tribunals

A White Paper with advice on How to save money, maintain business relationships and avoid negative publicity by embracing the power of mediation to resolve business and employee disputes. Download the PDF here.

You can subscribe to Justin's invaluable eZine here.

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Interviews with ADR giants: Mediate.com opens video archive for month of April

Posted by: Diane Levin in Cool Things on the Web, Mediation, Mediation in Practice

Mediate.com, the world’s premier source for news, information, and articles about mediation, has opened its video archive to the public during the month of April.

For description of the type of videos available, run right over to Diane Levin's blog by clicking on the title up top.

Thanks Diane for getting the word out about this.

For a taste of some of the offerings, watch this short video of Ken Cloke talking to Robert Benjamin about the evolution of conflict  over the lifetime of an individual as well as over the lifetime of a civilization.

Cloke is my mentor and his insights are just as useful to the settlement of commercial litigation than are some of the competitive negotiation skills I've learned along the way.  Check out all of Ken's videos.

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From today's Wall Street Journal, Don't Buckle in Layoff -- timely advice for one of life's worst case scenarios - being made "redundant." 

First piece of layoff wisdom:

Negotiate Your Severance

While not required to do so by law, many employers offer severance packages to laid-off employees. The package's size is usually based on the employee's length of service -- some are entitled to two weeks of pay, while more seasoned employees may receive as much as a year's worth.

If you've been working at your company for only a year or two, there are ways to wring a little more pay from your employer. First, ask that any unused vacation days get tacked on to your final paycheck. (You can also try to do this with sick days, but it's often a long shot.) If you have a stellar record with the company, it's also worth asking for more severance pay or an extension of your health coverage.

For the rest of the WSJ's timely tips, click here.

And while we're on the topic of severance pay, here are a few tips about signing releases offered in connection with severance packages for those over forty.

Know Your Rights If You're Offered Severance by WorkWise columnist Dr. Mildred L. Culp

Two main forces — a declining economy and the graying of the workforce — are causing people to ramp up discussions about age discrimination in layoffs and severance. Under the Age Discrimination in Employment Act (ADEA), employers must follow certain guidelines when they're offering severance, says Andrew Milne, senior counsel with the Bethesda, Md., firm of Garson Claxton L.L.C. He warns employees to:

• Watch for undue pressure to sign release of claims when handed a severance package. "You must be given at least 21 days to think about the package," Milne states, "when you're terminated but not part of a group."
• You must be given the option to revoke the waiver within seven days after you sign it. "This must be set out, in writing, in the release of claims," Milne notes.
• You also have rights if severance accompanies a group layoff or early retirement program, he indicates. The ADEA stipulates a period of 45 days or more to make your decision, along with the seven-day revocation provision. 

Milne says these requirements alone, unmet, won't give you enough to sue. However, if you have evidence of age discrimination, a signed release that doesn't follow ADEA guidelines won't block you from a bias claim.

For full story, click on headline above.

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The British call layoffs "redundancies."    I prefer the American term - layoff -  because it focuses on the employer's need in times of economic stress ("I can no longer afford to pay you and so must lay you off) to the British locution which focuses on the employee's presumed inefficiency ("because your work is being performed (better?) by others, you have become redundant.")

Why the attention to semantics?  Because in times of massive law firm layoffs (see Law Shucks Lay-off Tracker here) you don't want today's efficiency become tomorrow's crushing legal liability. 

Lawyer Layoff Paranoia by the brilliant Charles Fincher at LawComix.com.

So how do you avoid the looming threat of litigation by laid off employees?  According to researchers, you terminate graciously, honestly, with expressed respect and compassion, and, if possible, with offers to help the laid off employee find work and replace critical benefits such as health insurance. 

Why do terminated employees bring suit?  It's not, as I'm always saying, just about the money. 

Researchers have found, for instance, that:

• Feelings of unfair, insensitive treatment at the time of termination had nearly twice the effect of the next most potent factor in bringing suit.
• Blame was not strongly related to the claiming process 
• There is some, but slight, support for the proposition that certain groups -- women and minorities - are especially likely to sue
• Perceptions of poor on-the-job treatment motivate lawsuits as much or more than an individual's belief in his or her ability to prevail in litigation
• the shorter the notice of termination, the greater the likelihood of suit

Finally, and most importantly for law firm management, the best predictor of a former employee's willingness to file claims for wrongful termination was highly educated respondents.

Researchers have also catalogued the most common on-the-job experiences that lead to litigation, including most prominently,

• negative experiences with supervisors;
• the belief that processes used by the supervisor are unfair.
• violations of procedural justice (the perceived fairness of the procedures by which outcomes are determined)
• perceived violations of equity and distributive justice  (the perceived fairness of outcomes)
• perceived violations of interactional justice  (the perceived fairness of the nuances of interpersonal treatment)
• survivors' attitudes toward their organization are strongly associated with their beliefs about the fairness of the manner in which their companies laid off other workers
   

"Blaming and claiming" activity (lodging grievances; seeking relief from the EEOC; retaining legal counsel to file suit) is strongly correlated with the manner in which employees are terminated.

Why?

Because Termination Causes Employees to Reevaluate Fairness in Working Conditions.  And you do not want to give employees the opportunity to reevaluate those conditions in light of their last employment experience - termination - unless that experience is positive.

The researchers have found that:

• people react strongly to nuances of treatment and style at the time of termination
• the quality of dismissal affects people’s decision to bring suit as much as termination itself.
• a fair, honest, and dignified termination should substantially reduce the temptation to retaliate through litigation.

The experts therefore recommend that employers:

•  treat their laid-off or fired employees with compassion and respect at the time of termination
• give several weeks advance warning to all laid-off or fired employees
• provide terminated employees with help in finding new employment
• give terminated employees honest accounts for the cause of their termination
• provide transitional alumni status to terminated employees when possible
• provide symbols of positive regard to terminated employees such as letters of reference, departure gifts or parties
• offer counseling services to terminated employees to ease the psychological shock of employment termination

According to a recent ABA Journal article entitled One Lawyer Layoff Saves an Average of $250,000 also notes that:

• some of the savings from layoffs is initially eaten up by severance payments
• at least one firm chairman indicated that the firm pays about $7 million in severance for every $10 million saved in compensation
• another firm chairman estimated that it takes about nine months before any savings are realized by lawyer layoffs.

If law firms don't want these savings to start bleeding red ink, they'd do well to study "naming, claiming and blaming" behaviors of terminated employees and to implement processes and procedures to reduce the potential for litigation flowing from these cost-saving measures.

For further reading, see my own Power Point Presentation from which most of the above statistics were taken here and the article from which most of that information was derived:  The Winding Road from Employee to Complainant here.

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image from ChaosScenario

Wal-Mart Settles Suit Over Pay for $54 Million

MINNEAPOLIS (AP) — Wal-Mart Stores, the discount retail giant, will pay up to $54.25 million to settle a class-action lawsuit that accused the company of cutting workers’ break time and allowing employees to work off the clock in Minnesota.

The class includes about 100,000 current and former hourly workers who were employed at Wal-Mart Stores and Sam’s Clubs in Minnesota from Sept. 11, 1998, through Nov. 14, 2008.

Wal-Mart has also agreed to maintain electronic systems, surveys and notices to stay compliant with wage and hour policies and Minnesota laws.

In July, a Dakota County judge ruled against Wal-Mart in the lawsuit, saying the retailer, based in Bentonville, Ark., violated Minnesota state labor laws two million times by cutting worker break time and “willfully” allowing employees to work off the clock. Court proceedings had been scheduled for next month to determine punitive damages.

Continue reading here.

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Want a horror story for Halloween?

Remember that Heller Ehrman collapse?  Seems that you don't get COBRA benefits if the health plan your former employer maintained is kaput because it has gone out of business.

Now think, pending surgery, no health insurance, pre-existing condition. 

Why do I lead a post about resolving work-place conflict with bankruptcy and tragedy?  Because no 100-year old AmLaw100 firm fails so spectacularly without having made some conflict resolution mistakes.

Can you eliminate conflict in the law firm?  Hellllloooooooooooooooo???????????  We're lawyers who Anne Reed at Deliberations this morning reminds us have been characterized as . . . well . . . sharks with

skin that is tough and rough -- covered with thousands of tiny hard teeth call denticles that abrade any passerby made of softer stuff. Lawyers are also thick-skinned. Easily identified by their humorlessness and abrasive personalities, they are the bane of many social gatherings.

Ouch!

What to do?  Apologize when your "denticles" abrade passersby, but more importantly, ask yourself the most important Bob Sutton-inspired organizational wellness question noted over at The Non-Billable Hour this morning:

 What Happens When People Make a Mistake?

 

 

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Earlier this week I was asked the following question by a concerned General Counsel:  how can we help our employees grapple with on-the-job justice issues without leading them to believe that our proposed solutions are untrustworthy.  

The problem, as eloquently described by a lengthy email posing the question, is one that all employers face, large and small.  For this GC to have thought that mediators might make a difference is particularly heartening on a day when mediator Justin Patten was reporting that mediators are the furthest thing in a UK company's mind when dealing with conflict.  

(above, the work of the brilliant Hugh McLeod)

To understand the depth of the problem posed, I'm providing you with the full email sent to me:   

Victoria:

I just read your blog post of September 15, 2008 regarding Peter Murray's article (which I have not read yet). I was having a discussion today with my Director of Human Resources, and raise a related issue.

Our company spends an inordinate amount of time explaining disability, workers comp and federal employment law to employees who misunderstand what their rights are, or do not give us the right information to help them get the help they need.

Of course, we are the big bad employer, so any information we give them is suspect. I have considered hiring a social worker as a case manager/advocate for these people, but that position would just be interpreted as another tool of the evil employer out to keep them out of work/make them go back to work in violation of their best interests, so it would be a waste.

We would LOVE if there was an independent agency that would assign a case worker, not to work as an attorney for the employees, but as an advocate to help them understand their rights and access the system correctly. I would gladly pay to fund this service.

Then I realized, if the employer, or a group of employers, funded this employee advocacy agency, employees would think the advocates were biased toward the employers and were just in a sham relationship to deprive them of their rights to serve the interest of the employer.

Now, I do not believe this would be the case. I trust in the professionalism and ethics of mediators, but I do believe that uneducated and single users would form that opinion. Professor Murray's opinion reinforces that conclusion, even though at first glance, he would seem to be "educated."

But, is bigger government the answer. My experience with the EEOC is that they want employers to do MORE than is required by law. We have had success with mediators after complaints are filed, but my goal is to get the employees what they need when they need it, not have a mediator help us fix it after time has run out.

What are your thoughts on this?

The Problem as Cognitive Bias

I've highlighted the sections of the GC's email that raise the problem of reactive devaluation -- our tendency to devalue and resist anything our "opponent" offers to us.  Most attorneys were taught reactive devaluation as first year associates -- "if opposing counsel wants it, you don't." 

As the linked article -- Reactive Devaluation in Negotiation and Conflict Resolution -- notes:

One can be led to conclude that any proposal offered by the “other side”—
especially if that other side has long been perceived as an enemy—must be
to our side’s disadvantage, or else it would not have been offered. Such an
inferential process, however, assumes a perfect opposition of interests, or in
other words, a true "zero-Sum" game, when such is rarely the case in real-
world negotiations between parties whose needs, goals, and opportunities
are inevitably complex and varied.

Combatting Reactive Devaluation in the Workforce

Cognitive biases such as reactive devaluation are not random artifacts of an irrelevant evolutionary past.  They are built-in protections against deception by our friends as well as by our adversaries.  There is only one lasting protection against this bias -- to engage in clear communication with your work force on a daily basis concerning the mutual and complementary interests of employer and employee; to express your belief in your interdependence in word and deed, i.e., by engaging in dialogue and activities demonstrating  benevolent intent; and to willingly listen to one another's complaints, understanding that one man's benevolence is another's bondage. 

As recent legal news touching too close to home (the Heller dissolution) bears out, the workplace will not work if the middle or the bottom collapse.  If human resources are your greatest capital asset, attend to the wisdom of Adam Smith Esq. on Heller's recent failure:

"Our assets go down in the elevator every night."

Take that bromide seriously.

You must give people a persuasive reason to come back "home" every Monday morning.they go down the elevator every night and must have a good reason to come "home" the next day. 

Asking Diagnostic Questions and Using Transformative Mediation Methods

I repeatedly tell my clients what I've learned from the academics who teach negotiation strategy and tactics at elite business schools throughout the country -- 93% of all negotiators fail to ask their bargaining partners diagnostic questions the answers to which would dramatically improve the benefits of the bargain to everyone. 

What's a diagnostic question?  One that would reveal our bargaining partners' needs, desires, priorities, preferences and motivations.  I'm no employment expert, but I have participated in the management of law firm personnel as a partner and have been managed by others throughout my professional life.  As a full-time mediator for more than four years, I have also asked hundreds if not thousands of diagnostic questions to help litigation adversaries understand one another's motivations, to reframe those motivations as non-threatening, or, at a minimum, the result of ordinary human fallibility, and to explore the parties' mutual and complementary interests. I also remind my parties and myself as often as possible that you cannot drill a hole in the other guy's side of the boat without making your own side sink to the bottom of the lake as well.

As the transformative mediators who have been most successful in workplace disputes tell us, our job is to assist the parties in moving from fear and powerlessness to accountability and mutual recognition of the interests of the other.

Empowerment, according to [the fathers of the transformative paradigm] Bush and Folger, means enabling the parties to define their own issues and to seek solutions on their own. Recognition means enabling the parties to see and understand the other person's point of view--to understand how they define the problem and why they seek the solution that they do.

(Seeing and understanding, it should be noted, do not constitute agreement with those views.)

Often, empowerment and recognition pave the way for a mutually agreeable settlement, but that is only a secondary effect. The primary goal of transformative medition is to foster the parties' empowerment and recognition, thereby enabling them to approach their current problem, as well as later problems, with a stronger, yet more open view. This approach, according to Bush and Folger, avoids the problem of mediator directiveness which so often occurs in problem-solving mediation, putting responsibility for all outcomes squarely on the disputants.

Rights and Remedies vs. Interests

It's not surprising that employees just don't seem to "get" the legal rights and remedies company HR departments keep trying to explain to them.  They don't make any sense absent legal training.  

People who are not lawyers simply don't understand why there is a legal remedy for one type of injustice but none for another that feels just as unfair.  Let's take our patchwork of Constitutional protections for employees.  As an life-long ACLU member, I'd be the last to denigrate them.  But we have to understand that we've created a "fair" workplace for only some of our citizens, not all of them. 

Women, people over 40, under-represented minorities and the like, can take the square peg of their unfair work treatment and cram it into the round hole of a viable cause of action.  If an employee does not want to cry "gender discrimination" even though she's being treated badly on the job, or if he has no bundle of legal rights to assert, there is no remedy for a termination that feels (yes, feels) wrongful.  Remember, it took us lawyers quite some time for the legal worldview to "click" and we were immersed in it, drilled in it and eager to learn it.  Employees just want someone to listen to their problem and to help them resolve it.  They don't want to know the wage-hour laws, the need to exhaust administrative remedies with the EEOC and the like.  

Employees and employers have people problems with justice issues, not legal problems with "irrelevant" emotional responses that get in the way of resolution. 

Expressed emotion is the key, not the lock. 

It is we -- the lawyers -- who legalize and monetize injustice, shutting our clients down when they try to explain what the problem really is because it's irrelevant to the legal solution.

If you're old enough to remember the lingering moment in United States history when our educational institutions went from white, on the one hand, to multi-hued, on the other, you'll know intimately how you deal with reactive devaluation.  You get to know one another.  Do this and Kaneesha is not "black" or "African American" but a well-known acquaintance or dear friend.  The same is true for employers and employees.  Create activities in which (alleged) oppressor and (purported) oppressed come together to engage in mutually productive (Habitat for Humanity springs to mind) and mutually enjoyable (basketball?  girls nights out?) activities.  At the holiday party, don't relegate the "underlings" to their own table.  Walk your talk.  Destroy the hierarchy everywhere except where it's actually necessary to get work done. 

I can't describe the benefits of interest-based resolutions over rights-based solutions any better than does my mentor and friend, Ken Cloke, in his brilliant new book -- Conflict Revolution.

[r]ights-based processes . . . generate winners and losers, undermine relationships, and result in collateral damage, . . . Since rights rely on rules, change is discouraged, though not prevented, and conflicts are settled rather than prevented or resolved.

This is not easy work. As a mediator, I know how elusive Cloke’s “outcomes” can be

--  outcomes [in which] both sides win and no one loses, when former adversaries en-
gage in meaningful dialogue and reach satisfying agreements, and when power is exercised with and for each other by jointly solving common problems.

I have, I am afraid, given my GC a problem rather than a solution.  More accurately, I've suggested an altered way of looking at the problem without a great deal of detail about crafting a solution.  Not only could people better versed in employee relations write books on this topic, they have.  Therefore, I'm asking my good ADR blogging buddies to please chime in here for you.

Diane Levin?  Geoff Sharp?  Blaine Donais?  Ombuds Blog? John DeGroote?  Nancy Hudgins?  Stephanie West Allen?  Gini Nelson?  Tammy Lenski?

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I note today that yesterday's post was . . . . well . . . a little snippy.  

Now that I've managed to get my hands on a copy of Professor Murray's article on the privitization of justice (which I'll post as soon as someone gives me permission to do so) I have a few more observations that are more nuanced than my first reaction.

First, I note that much of Professor Murray's article focuses on arbitration agreements that are forced down the throats of consumers -- an injustice that is so far removed from one that might arise in a mediated settlement conference that I'd like to address it separately on another day.  

Second, I am not without criticism of court-annexed mediation practices -- those criticisms populate this blog in great number.  Nor am I naive or inexperienced enough to pretend that mediators do not effect party decisions even when they are represented by attorneys who are presumably mediation- and mediator-savvy.     

Nevertheless, re-reading Professor Murray's criticisms of mediation this morning, I am once again stuck by the number of untested assumptions upon which he bases his pretty radical suggestion that mediated settlement agreements be vetted by judicial officers. The major and minor premises of Professor Murray's accusation that mediation corrupts justice include the following:

• there is only one set of "powerful repeat players" -- insurance companies -- who choose and use the services of mediators;
• the other set of repeat players -- plaintiffs' personal injury and employment counsel -- are more or less universally poorly equipped to either influence the mediator or to protect their clients from mediator bias;
• the easily influenced plaintiffs' bar, if not protected from mediator bias, will counsel their clients to voluntarily enter into sub-optimal settlement agreements that favor the interests of insurance carriers over those of their own clients';
• there is such a thing as an "objectively bad settlement" that a judicial officer would be  equipped to detect and remedy; 
• money paid to a "neutral" is the only pernicious influence on dispute outcome, as opposed to, say, racial, nationality, gender, and/or any other socio-economic differences between a judicial officer and a litigant or between the jury and a litigant; and,
• judicial officers are not subject to the influence of the repeat attorney-players who appear before them and socialize with them at Bar Association and other events.

Of all of the assumptions requiring testing before we impose a supervisory judiciary upon mediators, the premise that an objective, measureably "reasonable" settlement of any dispute exists is the one that most requires addressing.  

Because I could write a book on this topic, let me just highlight some of the factors that would make third-party vetting of mediated settlement agreements difficult to impossible. 

• money is not the only reason people file suit nor the only basis for their decision to settle it;
• whether the litigation at issue is a $2500 slip and fall action between a local grocery store and its customer; or a billion dollar insurance coverage dispute between an insurance carrier and an oil company, the people and commercial players involved are at least as -- if not more -- concerned with injustices that the law does not address as they are with those that it can address;
• though mediated settlement agreements are partially based upon the cost of further litigation and trial, on the one hand, and the probability of victory times the potential jury verdict on the other hand, they are also based on party needs, desires and fears that have nothing whatsoever to do with legal causes of action such as:
  • a corporation's fear that it will not be able to overcome jury bias against commercial enterprises, particularly if that enterprise is engaged in providing liability and/or property damage insurance to its customers;
  • the fear of individuals that they will not be able to overcome jury bias against any marker of their marginalization from the dominant culture such as color, gender, nationality, sexuality or religion;
  • the desire that one's opponent acknowledge responsibility for the role he/she/it played in the events giving rise to the dispute and for the actions taken to resolve it, many of which further inflame the parties' experience of injustice; 
  • party desires for revenge; and,
  • party tendencies to "read" and "spin" the dispute in a way that is favorable to him/her/it in all particulars -- misperceptions that are often corrected in the course of joint sessions between the parties who actually experienced the injury-causing event.

Examples of ways in which parties are able to resolve conflict in the context of their highly individual interests rather than the little buckets of rights and remedies into which we pour the facts of their dispute?

• a physician gives his consent to settle a malpractice action when he realizes that the Plaintiff is not attempting to "hold him up" but genuinely experienced the breast examination he gave her as an assault;
• the creditor agrees to settle for pennies on the dollar when convinced by evidence proffered during a confidential mediation session that the debtor would be bankrupted by any payment in excess of the offer (evidence not discoverable in litigation because it is not "relevant" to the causes of action alleged);
• garment manufacturers settle acrimonious copyright infringement litigation after their counsel allow them to have a confidential mediation conversation which cannot be used in court against them during which they learn that they have more in common -- and more ways to advantage one another economically -- than they have to fight about;
• a claims adjuster is brought to tears -- and seeks greater settlement authority -- by a father's frank confession in a confidential mediation conversation of the guilt he carries for the loss of his child in an automobile accident caused by the  high speed blow-out of an allegedly defective tire; and,
• family members not only settle their lawsuit but reconcile after years of self-imposed exile when they realize the "family" asset they've been fighting over is worth less to them than their love for one another. 

What I'd like Professor Murray and everyone who reads his article to understand is that we all share this justice problem.  The adjudication system is not working well for the people it was designed to serve.  The ADR options we've put in place to smooth out the rough edges of 18th century adversarial theory and practice are themselves insufficient to efficiently and fairly resolve 21st century conflicts.      

That's why I'm calling for a LegalTED Conference.  And if Professor Murray will forgive the snippiness of yesterday's post, I'd like him to be one of the members of  the Steering Committee.

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(Right, women protesting, 1912.  My own grandmother was 12 years old at the time this photo was taken.  By the time she was old enough to vote in 1921, she could vote)

Why women's voting rights and Hillary Clinton's DNC speech on a negotiation blog?  Several reasons. 

First, of course, is that fact that your blog author is a mid-20th Century woman who participated in the feminist movement in the early 1970's. 

I'm proud of the work we did at San Diego's Center for Women's Studies and Services (now the Center for Community Solutions). 

We trained women in the skills necessary to pass apprenticeship tests so they could gain entry into the skilled trades.  We opened the way for women to work at one of San Diego's largest employers -- National Steel and Shipbuilding.  We helped all women, including those who'd spent time in prison and battered women's shelters, find employment to help them break a cycle of poverty or move from the lower to middle classes by their own efforts and to provide better lives for their children.  

We were the so-called Second Wave women's movement, seeking and achieving the same education, training, work and respect that were only a white American man's entitlement when I was born in 1952.   

If you want to know what it was like for women when I was ten years old (1962) and my own divorced and single mother was working for $1.29 an hour selling bags and hoisery at a Leeds shoe store in San Diego, watch a single episode of Mad Men.  Follow "Peggy" who is opening professional doors long before there were any ceilings in men's rooms to crack.  Watch how women were treated and how little they thought of themselves.  Think of the way in which we were squandering our human resources by relegating my mother, your grandmother, to just a few honorable but limiting professions -- nurse, secretary, teacher.

(yes, this is the same typewriter I used in the typing pool at Arthur, Dry & Kalish in mid-town Manhattan in 1975; we had one woman attorney in the firm when I joined; she was in her 50's and was still an associate in trusts and estates)

The second reason I'm celebrating women's suffrage and Hillary's candidacy today is because you'll be negotiating with women.  We haven't shattered that glass ceiling but we've nearly done so.  You'll want to understand what motivates us, how we talk with you and how we talk among ourselves.  You'll want to know what feels offensive to us and what is respectful.  Most negotiation texts tell women how to negotiate like men or with men.  So late in the day, it's surprising that I'm unable to find any articles on what men should understand when negotiating with a woman.  

To negotiate our way into a better world in the 21st century, we'll need to understand one another better and learn to drop all of our stereotypes about men or women, black or white, Muslim or Christian.  

So let's all celebrate universal suffrage today.  Self-determination -- which is what mediation is all about -- democracy  liberty  justice.

Below, for your viewing pleasure, 1960.  

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Employment attorneys are among the biggest users of ADR, particularly mediation.  So it's with great pleasure that we connect our readers to Blawg Review #172 over at the Ohio Employers Law Blog which has fittingly given its summary of the week's best law blog posts an Olympic theme.

To host a future Blawg Review, read the guidelines here!

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Not an earth-shaking opinion from the Ninth Circuit but a good one to keep around the next time you want to claim -- or resist a claim of -- waiver.  Thanks to the Met News for summarizing these opinions on a daily basis and to LACBA for putting them into my email box every night. 

What on earth would we do without them?

Where employment-related dispute arose between employer and employee who had executed employment agreement containing a mandatory arbitration clause, and employee wrote letter requesting arbitration to which employer responded by telling employee that it did not consider his claim ripe for arbitration, district court's order—after employee's termination—denying employer's motion to compel arbitration on ground that employer previously breached its agreement and waived right to arbitrate disputes was error because employee did not properly initiate arbitration under agreement's terms; district court improperly concluded employer waived arbitration where it was debatable whether employer acted inconsistently with right to arbitrate, employer initiated arbitration immediately upon learning of suit, and employer's actions did not prejudice employee.

Cox v. Ocean View Hotel Corporation - filed July 23, 2008

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The Wall Street Journal Law Blog (Don't Wear Flip-Flops and Other Advice for Summer Associates) points us to a valuable new site for young associates (and would-be associates) -- The Hiring Partner's Office.   Whether or not this anonymous blog is posted by a hiring partner or a savvy summer associate makes little difference to the quality of the advice provided.  Check out Top Ten Things that Annoy Your Hiring Partner, one of which recognizes what most summer associates don't yet know -- the power in the firm as far as you're concerned, rests with people you might be naive enough to believe are "beneath" you. 

Number three on the list of what not to do this summer is --     

Being rude to support staff. If you say thank you to everyone who helps you, you would be amazed at how the staff will respond. Support staff work hard to help make you and the firm look good to clients and other third parties. DO NOT treat them like doormats. DO treat them with respect and show your appreciation.

Why do we mention this in a negotiation law blog?  Because you need to know who the secret stakeholders are when you are attempting to resolve any conflict or broker any deal.  They are not who they appear to be. 

And, head's up!!  "Your" secretary has been "practicing law" for decades.  S/he knows the judges, the court reporters, the clerks at the courthouse and the pecking order in the law firm.  S/he also knows where the bodies are buried.

Be nice.  Be teachable.  Learn.  Thrive.

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In Shanks v. Swift Transportation, the Federal District Court  for the Southern District of Texas held that where plaintiff-heirs in a wrongful death action sought survival and death benefits under a benefits plan requiring the arbitration of decedent's claims, Texas law required that those claims be arbitrated under the employment agreement's requirements despite the fact that none of plaintiffs was a signatory to the arbitration agreement.

Among the principles and holdings in this case were:

• the Federal Arbitration Act did not apply by its own terms
• although Texas law does not presume arbitration agreements are valid, if they are valid, doubts regarding their scope are resolved in favor of arbitration. 
•  under Texas law non-signatories may be bound to arbitration agreements under the doctrines of:
  • incorporation by reference;
  • assumption;
  • agency;
  • alter ego;
  • equitable estoppel; and
  • third-party beneficiary
• the heirs' survival claim and the claim for death benefits brought pursuant to the
  Plan was required to be arbitrated under the doctrine of direct benefits estoppel.
• Because Plaintiffs’ wrongful death claims were “factually intertwined” with the survival and death benefits claims, they must be arbitrated alongside the other claims.

I do not know whether Texas law, like California law, requires employers to foot the bill for the arbitration.  If it does not, I wonder whether this decision is the death-knell to the Plaintiffs' wrongful death claims, claims that can usually be pursued only if the attorney advances the costs of the wrongful death action to the Plaintiffs.  (Seethe ABA Journal post Are Lawyers Becoming Luxury Goods?) */

I also wonder whether the Fifth Circuit would conclude that requiring the arbitration of a wrongful death claim contravenes public policy.  I'd certainly make that argument before a federal trial court sitting in California, though I doubt that this ruling would be possible under California law.  

Hat tip to Lawyers USA for bringing us this breaking legal news.

_________________________

*/   As the ABA Journal item notes:

Lawyers increasingly are becoming like luxury goods to many would-be clients, an expensive article that they can't afford or don't want to make a priority.

And that is bad news for the profession as well as for the public, says a recent article in the National (PDF), a magazine published by the Canadian Bar Association

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See Lawyers USA News Brief Employees may be at disadvantage in arbitration  by Correy E. Stephenson here.  Excerpt below.

State courts are reversing arbitration awards for employees at a "statistically significant" rate compared to reversing employer-friendly awards, according to a new study.

Professor Michael LeRoy of the University of Illinois College of Law, a professor of labor and employment, recently released his findings after analyzing arbitration awards from an appellate perspective.

The study, published as a paper, "Do Courts Create Moral Hazard? When Judges Nullify Employer Liability in Arbitrations: An Empirical Analysis," looked at 443 state and federal court rulings on arbitration awards from 1975 to 2007.

While federal courts upheld 85.7 percent of employer wins and 85 percent of awards for employees, LeRoy found markedly different results in the state court system.

There, lower level appellate courts affirmed employer awards 87.2 percent and employee wins 77.6 percent of the time, while the upper appellate courts were even more divergent, with 86.7 percent of employer awards affirmed and only 56.4 percent of employee victories upheld.

These findings suggest a "snowballing futility for employees," LeRoy writes, because the options after being reversed on appeal are limited. Either the employee must start over at the beginning of arbitration, "or worse, be stuck with a useless award and no other recourse."

LeRoy terms this trend a "moral hazard" which is "created by risk sharing contracts or public policies that discourage individuals from avoiding costly behaviors."

Continue reading here.

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I've got a little series on law firm happiness going on over at the tremendous workplace law resource Connecticut Employment Law Blog.  Dan Schwartz, the dynamite Blog Meister behind Connecticut Employment Law had to take a blog break  while actually TRYING A CASE (yes, people still DO).  While working, he filled his excellent blog with guest posts, including my three-part series ending with partnership compensation today.  

Call me an idealist, but some of the suggestions made in my current post over at the Connecticult Employment Law blog are taken from Lauren Stiller Rikleen's exhaustive analysis of the modern law firm's ills and potential remedies in Ending the Gauntlet, my review of which will appear in this section of the Complete Lawyer's next issue so keep a look out for it!

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What's the secret of a happy law-life? 

Being right? 

No!

Delegating responsibilities. 

That's what Connecticut employment lawyer and blogger, Daniel Schwartz, has done while he's trying one of those employment cases that resist negotiatied resolution. 

Not only is the delegation of Dan's blogging responsibilities smart, it's pie-expanding. 

Though Dan's readers are likely missing his voice with their daily coffee and eggs, he's turned their loss into other bloggers' gain by asking several of his colleagues to "guest blog" while he's gone.

Yesterday, for instance, Dan kicked off guest blogger week with the Evil HR Lady's commentary on Walmart and Blogging here.  As Dan explained . . . .

I should tell you that I do know [Evil's] first name; but she has told me that she'd hunt me down if I revealed her identity. So instead, I've asked her to provide a short blurb to introduce her; here was her candid response:

Evil HR Lady works for a Fortune 500 Company making sure that as many people as possible get fired. Hence, the Evil part of her name. She blogs and takes questions here.

Nothing like an HR person with a sense of humor, right? Well, she also has a very entertaining blog that is part Ask Amy, and part Jack and Suzy Welch. . . . 

Today, Dan graciously allowed me to introduce a few mediation principles into his blog with The Division of Chores and Partnership Compensation, Part I. 

Even though I do hate the term 'win-win' as far too redolent of marshmellows roasting over a camp fire ("say, pass the Hershey's chocolate, would you?") Dan is exemplifying the essence of integrative, interest-based "win-win" problem solving for his readers. 

While he rides off on his white stead to win win win win win his client's case at trial!

Thanks for the opportunity to meet your readers, Dan.  And go get 'em!

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The ABA Section of Dispute Resolution Presents The 10th Annual Spring Conference Pacific Currents: Sound Perspectives on ADR

April 3-5, 2008

Pacific Currents: Sound Perspectives on ADR is the premiere conference in the world for dispute resolution professionals and lawyers engaged in dispute resolution processes. This conference offers some of the best ADR CLE in the country presented by diverse and experienced faculty. With over 90 CLE programs planned, you can fulfill all of your CLE requirements over the course of a few short days.

This year’s conference also offers many dynamic and engaging plenaries.

The opening plenary entitled Hot Topics in Arbitration: The Fair Arbitration Act, Hall Street, and More will discuss the most recent developments in arbitration law, including cases pending in the Supreme Court, as well as potential arbitration-related legislation.

Linda Babcock will present the Friday morning plenary: Women Don't Ask: Negotiation and the Gender Divide. Ms. Babcock will speak about the four-phase collaborative problem-solving approach to negotiation and how lawyers and mediators can use this approach to manage the reactions and emotions that may arise on both sides of a dispute.

ABA President William Neukom will deliver a keynote speech and Tom Stipanowich, Academic Director Straus Institute for Dispute Resolution and Professor of Law, Pepperdine University, will present at the Friday Luncheon.

Saturday offers The Language Conflict: How Aggression and Violence Inform the Way We Speak presented by Kenneth Cloke and Joan Goldsmith of the Center of Dispute Resolution. This skills-building plenary will examine strategies on how to turn hostile denunciations and debates into appreciative disagreements and dialogues. Don’t miss out! Register today to attend these exciting plenaries.

I'll be presenting a seminar on Intellectual Property Mediation with the Hon. John Wagner (Fed. Magistrate, Ret.) and Christine Byrd of Irell & Manella.   

To review the conference brochure click here.

Book your hotel today! The negotiated conference room rate ends soon. Contact the Sheraton Seattle Hotel & Towers at 1-800-325-3535 or register online and reference the ABA Section of Dispute Resolution 10th Annual Conference to receive the discounted conference rate of $189.

This discounted rate is available until March 4th or until the block has been filled.

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Before a wave of emotional despondency descends upon rank-and-file mediators from Geoff Sharp's revelation that median mediator income hovers around $67,000, let's get a little perspective.

First, if you are making $67,000 per year, you are the 52,428,447 richest person in the world and are in the top .87% of the wealthiest people worldwide.  See Global Rich List to end your week on a note of gratitude with a donation to the charity of your choice. 

 Chart from PayScale.

OK.  You don't compare yourself to the people living on less than one or two dollars a day, even though that's the first item on the list of your myriad blessings.  Half of the world's population -- nearly three billion people live on less than two dollars a day.

Check to charity or for a microloan written yet?

But you don't compare yourself to half the world's population.  You compare yourself to attorneys -- a profession you chose not to pursue or that you left to be happier.

The median salary for attorneys who have been in practice between one and four years is -- oh my goodness!!  -- just a couple grand less than the median income for mediators!

And remember, an attorney who has practiced between one and four years has been devoting him/herself to the law for between four and seven years -- the first three of which s/he was spending tens of thousands of dollars for a law degree and earning either precisely -- or next to -- nothing.

So.  If you've been mediating for between four and seven years and are making something between $50,000 and $100,000 per year, you are doing every bit as well as the median attorney.

Does your weekend look any brighter now?

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Kearns & West, a mediation and communications firm specializing in water, energy, natural resources and environmental mediation, collaboration and public involvement, seeks: 

• A seasoned mediator/facilitator or public involvement expert to join the firm’s San Francisco office, or 
• A mediation/collaboration/public involvement firm or 2-5 person group that is interested in joining K&W, and/or 
• A seasoned mediator/facilitator or public involvement expert or small firm interested in joining the firm in other locations. (We currently have offices in San Francisco, Washington DC, Portland, Denver, Sacramento, and have interest in Southern California and other locations in the east as well).

For more details, click here.

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Finally an excuse to post a photo of the world's sexiest man on my blog!

The excuse?

Professor Carrie Menkel-Meadow's Concurring Opinion Post Can Actors Do Everything? letting us know that George Clooney and Tom Hanks have offered to mediate the writers strike as follows:

George Clooney, Tom Hanks and other actors have offered to step in and "mediate" the writer's strike. They say they will just tell the two sides "you have to live with this (particular terms) and get over it." Some bloggers suggest only "starpower" will make the producers bargain in good faith.

I hope these well intended actors know what they are doing when they offer to mediate. It sounds like they don’t. Mediators don’t tell the parties what to do (”you need to live with that and get over it”). They facilitate negotiations between the parties so they can (together) come to an agreement and “live with it.”

For the remainder of Professor Menkel-Meadow's post, click here.

Of course anyone can mediate.  Each one of us do it on a daily basis in some form.  Parents do it between children; children do it with their peers; employees do it on behalf of their employers or colleagues; and, I'm certain, actors and directors do it with an incredible array of difficult personalities both on and off-set every day.

Co-Mediation:  An Idea Whose Time Has Come

I have a friend and colleague, fellow Judicate West panelist and AAA arbitrator Jay McCauley who co-mediates medical malpractice and other health care litigation with a physician mediator, Marc Lebed through their organization Medical Dispute Professionals.

They are harnessing the power of a subject-matter-specialist/mediator team to help doctors and patients resolve their disputes.

A similar process could well be the answer to the writers' strike.  Substantial research has found that the most powerful persuasive force is the opinion of an individual who genuinely "feels your pain" or is inside your "decision cycle" (h/t to Colin Powell).   

If Clooney and Hanks teamed up with a great mediator, it wouldn't surprise me if their addition to the mediation team might well make the difference between continued impasse and agreement.

It couldn't possibly hurt, could it? 

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UPDATE:  THAT WAS ME SHAKING THE PACKAGES UNDER THE CHRISTMAS TREE WHEN I DIRECTED MY READERS TO THE JANUARY '08 ISSUE OF THE COMPLETE LAWYER ON WORKPLACE BULLYING.

Assuming everyone is far more patient than I am (instant gratification takes too long) your patience will be amply rewarded if you don't open links to the incomplete Complete Lawyer of 2008 until the first week of January.

Apologies to Don Hutcheson and crew who put out the best looking online legal journal on the block!

The upcoming issue of the Complete Lawyer (Vol. IV, Issue 1) will be outting the bullies among us . . . . but, please don't open until after Christmas.  

My article Why Lawyers Are Unhappy… And Make Others Unhappy, Too is a personal confessional of workplace misbehavior. In fact, it's just about as personal as you can get without committing professional suicide.  But hey!  Somebody had to fess up and when you're  the jerk in the workplace, it's you who is usually the last to know.  As my regular readers know, however, there is a happy ending to this one.

I feature my own article first here only because I can.  The other authors addressing the issue of workplace bullying should be front and center because they are luminaries in their fields.  Take a look at:  

The No Asshole Rule by Robert Sutton, Professor of Management Science and Engineering at Stanford University

How to Spot and Deal with Jerks by Julie Fleming Brown, author of the renowned Life at the Bar blog

Create a Blueprint for a Bullying Free Workplace by Gary Namie, North America's foremost authority on Workplace Bullying

Defining and Legislating Bullying by Garry Mathiason, vice chair of Littler Mendelson, and, according to the National Law Journal, one of the 100 most influential attorneys in the nation

Yes, There are Ways to Reform Workplace Jerks by Employment Practices Specialist Allison West

In this crowd, I feel like Zelig!

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For the complete article 3 Steps to Making Smarter Counteroffers :  Get the Compensation Package You Deserve by Michael Chaffers click here.

#1: Get Prepared

Before the negotiation begins, take the time to [do your] research . . . Establish a reasonable range for [compensation], a typical benefits package and common additional compensation (e.g., stock options, annual bonus, performance bonus). This work makes it possible for you to know the ballpark in which any satisfactory agreement has to fall.

Then, from those general points, determine the most favorable compensation package for you. You should be able to justify that package given the field in which you work (since compensation differs across industries) and your experience, expertise and credentials.

Make sure that this package addresses the real needs you have -- you will likely have trouble asking for more later if you overlook something. This package is your counteroffer.

#2: Be Firm

[S]elect[] a reasonable and appropriate counteroffer -- one based on the data you gathered in your research -- and stay[] there until the other side offers a persuasive reason for you to move.

By "persuasive," I mean an argument based on additional data or information that justifies a different figure or package than you had developed. . . . . An example of an unpersuasive argument would be "Your figure is too high. We can't do that."

#3: Be Wise

Keep the big picture in mind. Your goal in the negotiation is to reach an agreement that satisfies your interests -- not to win a battle between positions. If your counteroffer is not moving you closer to an agreement, do not hunker down and defend it to the death.

Instead, think of another proposal that addresses your needs and concerns and is supported by data, and put that out as another offer. Use your energy to generate solutions, not to fight battles.

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(right:  Julia Louis-Dreyfus on the picket line)

When we first wrote about the writers' strike and the active picketing just down the street here at Paramount on Santa Monica and CBS on Beverly Boulevard, we asked our friend Jim Stott for comment.

Because Jim's excellent comment was buried in small type in our "comments" section, I give it its due here by bringing it up into a post of its own.  

(for "live" WGA Strike Blogging from the Los Angeles Times, click here)

After noting that his own comments are not "in any way intended to minimize, diminish or otherwise criticize the hard efforts of the writers, producers or federal mediator's efforts to reach agreement in this ongoing dispute," Jim opines as follows:

Often, both parties become "blinded by the sparks" associated with their lack of progress at the bargaining table. In those situations, a psychological phenomenon occurs wherein parties start start to blame the 'other side' through personal attacks; one against the other. As this practice grows, the underlying issues that really need to be discussed are subsumed by the superficial and surface diatribes.

Obviously - to the outsider - settlement can only be reached when the parties focus on the substantive and underlying issues as a mutual and common problem. Often, both sides fail to realize that a problem for one contingent group is ultimately a problem for all contingents. If force, i.e., a work stoppage or lock-out is used as a means for getting the 'other side' to soften their positions, the latent residual feeling caused by such an action is often long-lasting and will materially damage the ongoing relationship between all stakeholders involved.

In practice and theory, writers need work provided by the producers, just as producers need the work-product of the writers. In negotiations, it is this symbiotic internal relationship that is most important. Long after the work stoppage has been resolved, the latent and labile underlying emotional distrust and dissatisfaction will continue; often for years.

The federal mediator assigned to this particular case is exceptionally well qualified. He is a colleague and friend. I have no doubt that his professional services provided in this situation were of the highest quality.

Rarely however, even with the presence of a mediator, negotiations break down and reach impasse. Intractable parties are often the stock-in-trade for federal mediators. It not at all unusual to hear the warring factions self-diagnose their positions as being "miles apart." On rare occasions though, parties are so far apart that their tangential distances and differences, when measured in cost and dollars can be significant.

It would appear that producers and writers are faced with unanticipated outcomes associated with the expotential growth of the broadband internet capacity and online streaming video and audio. On the one hand, producers may see this as a marketing and distribution opportunity, by which they will increase audience participation and marketshare. While at the same time however, writers may see this exploding media as one in which their recognition, compensation and earning potential has been and will be diluted and otherwise diminished.

These complex negotiations are never easy and are often rocky. The challenge to all the stakeholders is to continue the conversation and continue to make progress, albeit ever-so-slowly. Even if their conversations are not face-to-face, but done through an intermediary; they are critically important.

As long as all dialogue has stopped, there virtually is no chance the impasse will self-resolve; thus the stand off will continue indefinitely. This is precisely what happened in the Caterpillar work stoppage which lasted over five years. All communication stopped. Distrust on both sides grew expotentially. Replacement workers were hired. All the while, the union pickets were outside the plant, locked out, while the plant production continued to grow.

While this is an extreme case in labor management relationships, it is my hope that productive conversations, clandestine and off the record or not, continue. This is the only way in which this dispute will resolve without inflicting extensive and long-lasting damage to all stakeholders.

Currently, Jim Stott is a Principal and Senior Consultant with Stott & Associates of Gig Harbor, Washington. Until recently, he was Assistant Director at the Straus Institute for Dispute Resolution, Pepperdine University School of Law.

Prior to joining Straus, Jim spent nearly six years as a Commissioner with the Federal Mediation and Conciliation Service (FMCS) in Los Angeles and Washington, D.C., where he provided collective bargaining mediation and negotiation consultation services to federal agencies, private and public sector employers, and labor unions.

Jim was also instrumental in the design and development of joint labor/management committee problem solving protocols used by Los Angeles Dodgers, Southwest Airlines, Toyota, Kaiser Permanente, Boeing and Walt Disney Studios.

In his professional and academic career, Jim mediated more then 1,500 disputes. The majority of these conflicts were associated with employment, labor/management or collective bargaining issues. Jim has also provided pro-active and pre-emptive conflict management design systems. In his teaching and coaching capacity, he has taught mediation protocols and processes to over 1,500 students in academic settings, court programs, international labor unions as well as management/employer groups including CUE.

Jim holds a Bachelor of Science Degree in Business and Management from University of Redlands, as well as a Masters Degree in Dispute Resolution from Pepperdine University School of Law.

THANKS FOR THE GOOD THOUGHTS JIM!! 

WE MISS YOU DOWN HERE IN SOUTHERN CALIFORNIA!!

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This post follows up yesterday's about questions asked by the Supreme Court Justices during oral argument in the Hall v. Mattel case.  For a more thorough analysis than I was capable of providing,  I put out a call to my arbitration law posse and was greatly rewarded by the following comments.

Eric van Ginkel writes from Amsterdam:

Courts and scholars have traditionally ignored the distinction between vacatur (as to which section 10 limits the grounds, and there should not be any additional, non-statutory grounds) and appeal, about which the FAA is silent (other than perhaps section 9 which conditions the confirmation of an award on whether the parties have agreed that judgment on the award can be entered, arguably leaving that until later if they have agreed on an appeal to a court or a panel of appeal Arbitrators).

Sadly, the petitioners have also ignored this distinction, so the chances are that the Supremes will come out against appeal. As I have pointed out in the past, the clearest example of appeal next to vacatur as two distinct remedies can be found in the English Arbitration Act of 1996. 

AAA arbitrator Jay McCauley, who teaches Arbitration Law at Pepperdine School of Law writes:

This case tests the limits of the power of contracting parties to curtail the power of their arbitrator. Section 10 of the Federal Arbitration Act (i.e., the provision stating the grounds for vacatur) already provides that an award may be vacated if the arbitrator exceeds his or her powers. The question before the Supreme Court is whether parties may contractually define those powers by specifying that the arbitrator exceeds them if he or she fails to base his or her decision on the law.

There appear to be five lines of argument supporting the proposition that such contracts should not be enforced:

1. Congress intended the grounds for vacatur to be limited to those expressly set forth in Section 10, and none of those permits vacatur based on the content of the award.

2. Part of the ethos of arbitration is that it shall be quick and efficient (not slow and accurate), regardless of what the contracting parties desire.

3. Contracting parties should not be able to dictate to courts what courts should do.

4. Allowing vacatur on the basis of the content of the award will put too big a burden on trial courts handling vacatur motions, who are not used to the reviewing function.

5. Judicial review is often not in the parties' interests. We need to prohibit review to save the parties from their own bad judgment.

I think each of these arguments is faulty. 

As to Argument 1: Congress expressly said Courts may vacate when the arbitrator exceeds his power.  It never prohibited the contracting parties from defining what those powers are. There is no reason to consider the four Section 10 grounds for vacatur as exclusive. As long ago as 1953, the Supreme Court itself added a content based non-statutory basis for vacatur ("manifest disregard of the law") without an excuse as great as we have here, i.e., that the parties asked for it.

The agreement at issue in Mattel calls for a deeper level of review than manifest disregard of the law. Nevertheless, the Supreme Court would be hard pressed to say that such a review would contravene Congressional intent.  The Court long ago broke that supposed barrier. In any event, what Congress said it intended was to put arbitration agreements "on the same footing" as all other agreements.  That should mean "carry out what the parties contracted for" so long as their contract is neither illegal nor contrary to public policy.

As to Argument 2: There is no ethos to Arbitration other than the ethos of parties' freedom to customize their own adjudication process in any way they see fit. There are many in the ADR community who think about, and advocate for, arbitration as if it were an institution that must conform to a Platonic ideal.  The largest arbitration provider in the world, the American Arbitration Association, filed an amicus brief in the Mattel case, arguing that the customized arbitration the parties contracted for in this case should not be permitted because, inter alia, it runs afoul of the ethos of arbitration (i.e., quick, efficient and un-litigation-like). I have no idea why AAA, a neutral provider, would put its oar in this water at all. Nor can I fathom why they did so to pull against the direction of contractual freedom.

As to Argument 3: It is the Courts that should not be able to dictate what they do or do not do. It is Congress that has that power.  And Congress already used that power to dictate to Courts what they should do in this instance: that is, "enforce the parties' agreement as written."

As to Argument 4: The best of the arguments against permitting the parties to include judicial review in their private dispute resolution process is the long recognized common law limitation on contractual freedom: impossibility or impracticability. The kind of judicial review called for here, however, is not onerous or novel. District courts have been conducting content based reviews of administrative decisions as a significant part of their ordinary duties since the 1930s. 

As to Argument 5: I am the first to admit that judicial review of an arbitration award is usually, maybe even almost always, a bad idea. But those who oppose enforcement of contracts calling for judicial review are saying something more: that it is always a bad idea, and that it is such a bad idea that parties themselves should not be able to decide for themselves just how bad an idea it is for them.

It turns out that this case is the very worst scenario for judicial paternalism. Not only were the parties sophisticated players engaged in a commercial dispute, they entered into the agreement after the dispute arose (i.e., it was a true "submission agreement"), so they had reason to know precisely what they were getting into.

Something extra to watch: Just as the U.S. Supreme Court is now reviewing the Mattel case, the California Supreme Court is reviewing the Crowell case.  The Crowell arbitration arose under the California Arbitration Act and raises the identical issue as that raised by Mattel.

But here is the real irony in California: One of the reasons trial courts are already experienced with vacating arbitration awards for legal error is that they have already been told to do so by the California Supreme Court in employment cases (Armendariz). They must do so even though the California vacatur statute (CCP section 1286.2) like the federal vacatur statute (FAA section 10), does not include legal error as a ground for vacatur.  

Under Armendariz, California courts are not permitted to enforce an arbitration agreement if it does not provide a mechanism for judicial review.  If California now prohibits private contracts requiring judicial review of commercial arbitration awards, it will be imposing two directly contrary limitations on contractual freedom: Parties may neither limit the power of commercial arbitrators (by requiring judicial review) nor expand the power of employment arbitrators (by failing to provide for judicial review).

Imposing both limitations would not be a contradiction -- they arise in different contexts. But such a decision would starkly elevate the policy of protecting employees over the policy in favor of the freedom to contract. That is, the California court would be saying that employee protection is a good enough reason to override all of the arguments against thejudicial review of arbitration awards, but freedom of contract is not.

Finally, AAA arbitrator Les J. Weinstein writes:

While some might argue that judicial review would add transparency to the arbitration process by opening up the private proceeding to public judicial review would fuel the notion of a tailored private system for the rich and powerful using public resources.

Suppose the parties contract for judicial review under seal; is that OK?

If we like contract so much, why not let the parties "rent" an appellate panel?  Maybe the Supreme Court will review arbitrations as well?

If we go down this road, we would need new rules as well as Congressional authority. 

Who will pay for this potential new burden on the appellate system?

I doubt that mere contract alone will cut it under the current law but I predicted a Gore victory and a Supreme Court abstention so what do I know?

There you have it.  Three lawyers.  Three very good opinions.  Don't you LOVE the law?

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(Jay Leno who says "no writers, no show" -- photo from Yahoo Entertainment)

This very local news on the Writers' Guild strike is just in from the U.K. -- Writers Block Hollywood as Strike Takes TV Shows Off the Air (excerpt below, and kudos for yet another unknown artist of the terse and witty headline). 

On Sunday, a federal mediator made a last big push to avert the strike. The Writers Guild made one big eleventh-hour concession, dropping its insistence on a doubling of royalties from DVD sales but that was not matched by anything substantial enough from the producers to clinch a deal.

After three months of contract negotiations, which never entirely looked like producing an agreement, both sides are extraordinarily well prepared. The writers have commandeered 300 strike captains on both coasts who will direct pickets and other protests, and have amassed a strike fund of about $12.5m (£7m)which they will farm out in the form of loans to the neediest writers and their families.

In the meantime, you can see Jay Leno and Julia-Louise Dreyfus on the picket line (see TV Squad here on Leno handing out Krispy Kremes to strikers) down the street here in front of the famous Paramount Studio Gate if you click on the L.A. Legal Pad's coverage of the strike which links to a Channel 2 newscast featuring those well-known comedians.

We'd love to hear from any of our readers who have experience negotiating labor disputes. 

 Jim Stott in Gig Harbor, Washington?  We mean you Big Guy! 

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(photo:  Amanda Graham's Outlier)

I have Christina Doucet at the National Arbitration Forum to thank for summarizing some of the most recent statistical literature available on differences between procedure, cost, duration, outcome and party satisfaction of litigated and arbitrated consumer and employee disputes.

Time and Cost Differences Between Arbitration and Litigation

• Employment claims take 650 to 720 days to be resolved in court, according to the National Center for State Courts. 
• The median time to resolve an employee dispute by arbitration is 104 days 
• the median cost of resolving employment disputes by arbitration is $870.

Sources: Consumer and Employment Arbitration in California: A Review of Website Data Posted Pursuant to Section 1281.96 of the Code of Civil Procedure California Dispute Resolution Institute, August 2004 http://www.mediate.com/cdri/cdri_print_Aug_6.pdf   and Examining the Work of State Courts, (1999-2000) National Center for State Courts http://www.ncsconline.org/D_Research/csp/1999-2000_Files/1999-2000_Tort-Contract_Section.pdf

Outcome Differences Between Arbitration and Litigation:  Arbitration & litigation final awards are essentially the same as court judgments

• median monetary awards for successful claimants are greater in arbitration than in court—$100,000 in arbitration compared with $95,554 in court.

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I have heard from a "diverse attorney legal search firm" about this post (see comment below). 

Though this post was and is meant to be tongue-in-cheek and although the presence of under-represented "minorities" (including women) in law firm practice is a very serious subject, I note from a survey posted on Mr. Jordan's web site here  that Heller earned a "B" on its African American Greenlining Associate "Report Card." 

(above:  diversity and rocket science)

I'm certain my husband's law firm, Heller Ehrman, won't care that I've just now invented and awarded to Heller, Settle It Now's Diversity of the Year Award.

Heller does care however that the Human Rights Campaign has bestowed upon it the HRC's top rating for the second year in a row.  Heller's announcement below:

Heller Receives Top Diversity Rating For Second Year in a Row

(SAN FRANCISCO) September 18, 2007 – Heller Ehrman LLP announced that the firm has achieved the top rating in the Human Rights Campaign’s (HRC) Corporate Equality Index.

Now in its sixth year, the survey is an annual listing that measures how equitably companies are treating their gay, lesbian, bisexual and transgender (GLBT) employees, consumers and investors. Heller Ehrman was among 195 major U.S.-based companies, 30 of which were law firms, earning a rating of 100 percent. This is the second consecutive year the firm has achieved a 100 percent rating.

“We take very seriously our long-standing commitment to promoting a work environment that celebrates the diversity of all individuals,” said Judith C. Miles, managing director of people at Heller Ehrman. “We are very proud to earn this recognition from the Human Rights Campaign for the second year in a row.”

The Index was released today by the HRC as part of a report showing that a record number of the largest U.S. companies are expanding benefits and protections for their GLBT employees and consumers. The number of companies achieving a 100 percent rating is up from 138 in 2006. When the index was first released in 2002, only 13 companies, employing 690,000 workers, received the top rating. For a copy of the Index and HRC’s report, visit www.hrc.org/cei.

“More businesses than ever before have recognized the value of a diverse and dedicated workforce,” said Human Rights Campaign President Joe Solmonese. “More importantly, these employers understand that discrimination against GLBT workers will ultimately hurt their ability to compete in the global marketplace.”

The 2007 analysis covers 519 surveyed companies and measures the extent to which employers protect their GLBT employees. The Index rated companies on a scale of 0 to 100 percent on several factors, including non-discrimination policies, diversity training and benefits for domestic partners and transgender employees. . . . .

The firm has also played a major role in litigation concerning the GLBT community. For example:

• Heller Ehrman represented law schools and law professors in bringing a challenge to the constitutionality of the Solomon Amendment, which threatens universities and colleges with loss of all federal funds if they exclude military recruiters from campus or refuse to assist them in their recruiting efforts. Heller Ehrman was lead counsel when the case was argued before the U.S. Supreme Court.
• Heller Ehrman has been involved in a nationwide effort in supporting same-sex marriage with litigation in California, Washington and New York. Cases in California and New York relate to the same-sex marriages performed by Gavin Newsom, the Mayor of San Francisco, and Jason West, the Mayor of New Paltz, New York. In Washington state Heller Ehrman wrote an amicus brief on behalf of a group of historians in the same-sex marriage case, Andersen v. King County.
• Heller Ehrman brought a class action lawsuit against a telecommunications company challenging the company’s anti-gay employment policies and practices that had been in place since 1970. A landmark settlement of the case resulted in significant monetary compensation for class members and changes in the employment practices at issue.

CONGRATULATIONS HELLER. 

I'm pretty sure I have some old Hellerware -- t-shirts, flip flops, beach bags, polo shirts, hoodies and the like that I can bronze for formal presentation of the Settle It Now Diversity of the Year Award. 

Stay tuned!

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Because it's the beginning of the new "school" year and the beginning of many first year attorneys' first law jobs, I'm providing as much advice as possible to help ease former law students into their new professional careers.

EMPATHIC ASIDE:  If you're feeling like EVERYTHING is taking you WAY too long, I share with you the fact that my own first two weeks of practice were consumed by 10-hour days drafting a simple motion to amend a complaint on the eve of trial -- a motion that, two years later, I could draft in my sleep. 

Fear not.  We've all been first year's and we all understand.  If your superior doesn't, you might wish to remind him that though you're one of the hardest working new associates in rock 'n roll, you are doing for the first time tasks he's been doing for a lifetime.  

THE GOOD ADVICE 

Today I bring you good advice on writing summary judgment motions from a series of posts on that topic by a defense employment litigator, George Lenard, with the St. Louis, Missouri firm of Harris, Dowell, Fisher and Harris.   The blog entry is from George's Employment Blawg and it covers the practicalities of strategically planning for, preparing, and drafting summary judgment motions.

The only thoughts I have to add to George's are deposition-related since I teach deposition skills to young lawyers once or twice a year and hence am always thinking about their questions and challenges.  

The winning summary judgment motion is the foremost reason that you need to make a clear factual record containing party admissions in the depositions that you take.

• too many attorneys of all levels of experience treat the deposition as purely a discovery device, thereby losing the true benefit of this "discovery" procedure, i.e., it is often your sole opportunity to obtain the admissions necessary to prevail before trial.
• how do you get a clear admission?  PLANNING, PLANNING, PLANNING
  • you need to know what you need the witness to say to prevail in the summary judgment motion before you take the deposition
  • you must therefore have done the necessary prep work on the summary judgment motion before taking the deposition
  • once you know what you need the witness to say, you must "set him up" to say it. 
  • how do you do that?
  • learn how to use documents skillfully to elicit admissions -- this requires not only ease with authenticating and establishing the business records exception to the hearsay rule for those documents but also . . . .
  • the ability to ask leading cross-examination questions (one question, one fact) about those documents
    • i.e., this is the employment agreement you signed, correct?  that's  your signature at the bottom, is it not?  your signature indicates that you read and understood the terms of this employment agreement  at the time you signed it, correct? (directing the witness' attention to the relevant clause).  You were telling the truth when you signed your name there, correct?  You had in fact read and understood the agreements terms, isn't that so?  Turning to paragraph 6, yes, please do take all the time you need to read it.  Have you read all of paragraph 6?  O.K.  You read and understood this paragraph when you signed the agreement, isn't that right?  And this paragraph provides that, quote, employee agrees that his employment can be terminated for any or no reason at any time unquote.  That's one of the terms you agreed to correct?
  • then, of course, you'll have to move on to the "meat" of the case, which generally requires you to counter the assertion that the "at will" provisions of the employment agreement are irrelevant because the employee was fired for whistle blowing, or left her company's employ because of a hostile environment or in respone to sexual harassment. 
  • this, of course, is trickier and more difficult but you must plan a line of cross-examination with the goal of eliciting the admissions you need to prevail on a summary judgment motion in an extremely fact intensive area of the law.

Once again, I remind my readers that favorable negotiated settlements often depend far more upon the credible threat you present to your opponent than any of your own negotiating skills or those of your mediator.  There are many techniques for successfully bargaining from a position of weakness.  We will be writing about those techniques over the next few weeks. But we'd really rather see you bargaining from a position of strength, which is why we're providing these first-year  tutorials on building the best factual and legal case at the earliest possible opportunity to speed your client to its probable sole litigation destination -- settlement.

C'MON, BE A REAL LAWYER:  USE THE WITNESS' DOCUMENTS AGAINST HIM IN DEPOSITION

And here's more on using a witness' documents against him.  This is cross-examination at its finest -- the witness either admits the damning "spin" in the "testimony" being given by the cross-examiner or he looks evasive at best, like a liar at worst.  This cross-examination from one of the Vioxx trials is from the Illinois Trial Practice Blog care of this week's Blawg Review (the Labor Day Special Historical Edition). 

SPEAKING OF THE VIOXX TRIALS .... my good friend and colleague Judge Victoria Chaney of the Los Angeles Complex Court who presided over the first Los Angeles Vioxx trial will be speaking with me, Judge Alexander Williams, III (full time Superior Court settlement Judge), arbitrator and mediator Jay McCauley (formerly of Paul, Hastings), the Hon. John Leo Wanger, Ret. (former U.S. Magistrate and fomer partner at Irell & Manella) and registered patent attorney and arbitrator-mediator, Les Weinstein of Sheldon Mack and the AAA here in Los Angeles on November 13 -- Settlement Techniques that Give You the Winning Edge.

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It's not too late to join us and ALFA International for its Labor & Employment Practice Group Seminar entitled "Employer of the Year" or "the Office":  Which One Are You? at the Half Moon Bay Ritz-Carlton on October 3-5, 2007.

HOW COULD YOU RESIST? (photo:  Half Moon Bay Ritz-Carlton at right)

I'll be speaking with Joshua Frank, Senior Legal Counsel to DHL (moderated by James M. Peterson of San Diego's Higgs, Fletcher & Mack, LLP) on the Pro's and Con's of Employment Arbitration. 

You'll have to get up early for this one -- it's scheduled from 8:45-10:00 a.m. on October 3 -- but we promise you a lively debate and fresh perspectives on an issue that might make corporate and litigation counsel want to rip those arbitration clauses out of their and their clients' employment agreements.  Then again, you might just decide to rewrite those ADR Clauses altogether so that you get the best possible dispute resolution mechanism for your and your clients' work-force. 

Either way, the time is ripe for reconsidering and revising the way in which you and your clients handle disputes with their employees.

JOIN US!! 

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(photo:  Fighting Cats by Nikographer Jon)

From UK Mediator Justin Patten's (Human Law Blog) useful new e-mail newsletter and well-established blog -- 5 ways to avoid costly litigation, summarized below and linked here.  

1 Think carefully about the type of people that you do business with.

2 Be the kind of organisation which does not create disputes.

3 Seek to communicate effectively and consistently.

4 Have management trained to face up to the dispute. 

5 Have plain English and not too onerous legal terms.

For more details about Justin's mediation services, tailored mediation training or lunch time briefing sessions, call him at 01920 462202 or email Justin at  advice@human-law.co.uk

The Pitch

Justin Patten is an Accredited Mediator with the Academy of Experts who has advised in many workplace disputes. As a qualified solicitor he has also acted for clients on a wide range of employment disputes and is fully familiar with the legal process. Over the last 18 months he has elected to specialise in mediation, providing a full mediation service direct to businesses and via law firms, as well as providing practical mediation training. 

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When it comes to employment arbitration agreements, it seems like the more bases you try to cover, the less likely a Court is to enforce them.    

Even the highly respected Los Angeles-based international law firm of O'Melveny & Myers has proved itself unable to draft an employment arbitration agreement that satisfies California's procedural and substantive conscionability requirements.    

Just today, the Ninth Circuit Court of Appeal in Davis v. O'Melveny & Myers  held that the law firm's attempt to impose an arbitration agreement upon existing employees with a three-month notice period was both procedurally and substantively unconscionable.  (For a criticism of the opinion, click here).

In finding that O'Melveny's attempted imposition of the agreement on its employees was procedurally unconscionable, the Court stressed the firm's "overwhelming bargaining power" and the "take-it-or-leave-it" basis upon which the agreement was proffered.  Although the Court distinguished provisions that might permit an employee to negotiate a different deal, given its characterization of  O'Melveny's bargaining power, we don't imagine this Court would have read such a clause as anything other than illusory.      

As the Ninth Circuit stressed, however, a procedurally unconscionable agreement must be "analyzed in proportion to evidence of substantive unconscionability."  It thereupon went on to find four provisions substantively unconscionable:  the “notice,” confidentiality and, “business justification” provisions, as well as the limitation on initiation of administrative actions.

The challenged notice provision required the aggrieved employee to "give . . . notice of a Claim [within the year it arose] along with a demand for mediation" or it would be "lost forever."  Quoting Richards v. CH2M Hill, Inc., the Court held this provision substantively unconscionable because it would deprive the employee of the right to assert the "continuing violation doctrine available in FEHA suits" a benefit that flows only to the employer.  

The challenged confidentiality provision -- prohibiting mention of the mediation or arbitration "to anyone not directly involved" - was also found to be unduly favorable O'Melveny.  As the Court explained:

Such restrictions would prevent an employee from contacting other employees to assist in litigating (or arbitrating) an employee’s case. An inability to mention even the existence of a claim to current or former O’Melveny employees would handicap if not stifle an employee’s ability to investigate and engage in discovery. The restrictions would also place O’Melveny “in a far superior legal posture” by preventing plaintiffs from accessing precedent while allowing O’Melveny to learn how to negotiate and litigate its contracts in the future. Id. Strict confidentiality of all “pleadings, papers, orders, hearings, trials, or awards in the arbitration” could also prevent others from building cases. . . It might even chill enforcement  of Cal. Labor Code § 232.5, which forbids employers from keeping employees from disclosing certain “working conditions” and from retaliating against employees who do so.

The challenged exemption for alleged breaches of  confidentiality was also found to be unenforceable.  "As written," held the Court, the provision permitting a "non-mutual exception allowing [O'Melveny] a judicial remedy to protect confidential information" was “one-sided and thus substantively unconscionable.” 

Finally, the Court held that the agreement's preclusion of employee complaints to agencies charged with the well-being of California's citizens such as the Department of Labor, was contrary to public policy and therefore substantively unconscionable as a matter of law.  

There you have it.  One of the best law firms in the country was unable to draft an employment arbitration agreement that could pass public policy muster.  

Would anyone else like to give it a try?

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OK, so the part about Paris Hilton was pure tabloid (sorry, Paris, just kidding) but look! the mysterious metallic ball part is true!  Though like most headline-catching mysteries, not all that interesting after you get past the excited utterance.

Justice, however, should be neither hype nor mystery.

There are only two days left for you to take the Negotiation Justice survey here.

Litigators:  tell your mediators what protections and benefits you're looking for in a mediation.

Mediators:  ask your lawyer friends to take the survey.

And, oh yes, the people whose disputes we resolve.  Clients.  Yes, that's you.  The people who hire lawyers.  Tell us all what it is you're really looking for.  We promise we'll undertake a great effort to serve you better.

Preview from the Justice Survey     

If you had to choose, would you prefer to lose in a fair process or win in an unfair process?

Win even if the process was unfair 54%

Lose so long as the process was fair 46%

Agree?  Disagree?  Take the survey and let us know!

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We've talked before about complaints that mediators sometimes use time- authority- and fear-pressure tactics to wrest agreement from the parties. 

If a client can prove she was coerced into settling a Title VII case, the Federal District Court for the Northern District of California has a remedy for her -- rescission.  

As reported last year by the National Arbitration Forum, the Court In Ryles v. Palace Hotel, rescinded a mediated settlement agreement as violative of federal law governing the release of Title VII claims.  The release of such claims must be “voluntary, deliberate, and informed.”

As the National Arbitration Forum article explained

In applying that standard, courts must consider the “totality of the circumstances.” The factors to be considered include the clarity of the agreement, the claimant’s education and business experience, whether the atmosphere for the execution of the agreement was coercive, and whether the plaintiff had the benefit of counsel.

All but one of those factors favored enforcement. However, one of the factors – whether the atmosphere for the execution of the agreement was coercive – weighed heavily against enforcement because of the “intense pressure” applied by Ryles’ attorney. Based on that factor, the Court held that Ryles could rescind the settlement agreement.

In reaching its holding, the Court cited Ryles’ letter to the Court as bolstering her credibility. Moreover, the Court rejected Palace Hotel’s argument that California law required coercion by the other party to the contract, noting that the release of Title VII claims is governed by federal law.

More on mediation "duress" soon.

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In the recent case of Equal Employment Opportunity Commission v. Woodmen of the World Life Insurance Society, 2007 WL 702758 (C.A.8 (Neb.)) ("Woodmen"), the U.S. Court of Appeals for the Eighth Circuit held that an employee bound by an arbitration agreement may not seek damages against her employer as an intervenor in an EEOC enforcement action.  


On appeal from the district court's refusal to grant the employer's motion to compel arbitration, the Eighth Circuit reasoned that requiring Ms. Rollins to arbitrate her claims would interfere with the EEOC's ability to pursue its enforcement action.  The appellate court  also rejected claimant's argument that the arbitration agreement was preempted by the enforcement action under Waffle House.

The Court explained:

Had the Supreme Court intended to preclude an employee from asserting claims in arbitration against the employer concurrently with the EEOC enforcement action . . . , it would not have had occasion or need to discuss the possible ramifications of an arbitration award [in its Waffle House decision].

The Woodmen court concluded that neither Title VII nor Waffle House precluded Ms. Rollins from arbitrating all of the cross-claims she asserted as an intervenor in the EEOC's enforcement action.  In fact, the FAA compelled her to do so. 

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It's Friday.  Time to chill out a little and take ourselves just ever so slightly less seriously.

Here, for your viewing enjoyment, a parody of Employment Conflict Resolution from the hilarious televsion series "The Office." 

Sadly, the video is no longer available on YouTube. 

See Death and Taxes Blog for the written transcript here.

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Further commentary on walking (or riding) a mile in someone else's shoes.

The following YouTube clip -- a British public service announcement -- turns the world upside down to help "the rest of us" have a glimpse of what the experience of being disabled might feel like.

Its well worth the couple of minutes it takes to view it. 

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I'm co-teaching a class (with long time employment mediator Stefan Mason) at the Straus Institute this semester.  We covered the Americans with Disabilities Act last night and spent an hour of the class "listening" to the voices of the disabled by watching YouTube videos, one of which I provide for my readers below.

The first "adult" book I ever read was To Kill a Mockingbird (film link here and movie clip here) when I was in the fifth grade. I know it's considered sentimental and not well written by the academy these days.  But what do you say about a book that changes someones life?  

Surely, I had never before heard the phrase

You never really understand a person until you consider things from his point of view-until you climb in his skin and walk around in it.  ~Atticus Finch

And as much as Harper Lee loved and respected Atticus, I did too.  In my ten-year old heart, he embodied everything I was already beginning to care about -- tolerance, respect, kindness, generosity and a fierce devotion to justice regardless of the consequences.

With Atticus' advice still sounding in my head forty years later, I bring you the voices of disability from Stefan's and my ADA class last night.  The Credo for Support.  Listen.  Reflect.  Your next mediation with someone who's disabled will be transformed by this.

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Diane Pfadenhauer of Strategic HR Lawyer recently asked the question

Can the Employer be Liable for Discrimination if the Person Who Terminated the Employee Harbored no Discriminatory Motive?

The answer?  Only the US Supreme Court will know.  Excerpt from Ms. Pfadenhauer's excellent employment blog below:

One of the more interesting cases that the US Supreme Court will hear this year (BCI Coca-Cola Bottling Co v. Equal Employment Opportunity Commission) surrounds a human resources manager who terminated an employee based almost exclusively on information from the employee's supervisor. According the the EEOC, the supervisor allegedly had a history of treating black employees more adversely when compared to others and had a history of making racially disparaging remarks in the workplace. The human resources manager, who harbored no discriminatory motive, relied on the word of the supervisor when terminating the employee. In addition, the HR manager did not know that the employee was black.

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Copyright Charles Fincher at Scribble-in-Law, www.LawComix.com. 

You can buy this (signed!) and many other hilarious legal comics at the site that I've linked to above. 

What is it about Texas Lawyers and Art?  See Billing Time. 

Whatever it is, we're grateful for the laugh of recognition.  We all take ourselves too seriously and need to have our balloons popped like this at least once a week.

Why have I never seen any of these before?

I'm going to be late for a mediation because I stayed too long on the Scribble-in-Law site.

Thanks Charles!!

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E! Online reports in Michael Richards' Mea Culpa Mediation that the former Seinfeld star and local comedian will meet with the African-American comedy club patrons "whose heckling triggered the racist rant heard round the world."

The men's attorney, Gloria Allred, said a local judge will facilitate a meeting to help the parties resolve the dispute, apparently to open with a "personal apology for [Mr. Richard's] behavior."   

The value of apology in resolving litigation or preventing suit in the first instance remains a matter of controversy among ADR professionals and scholars alike.  

The most thorough and thoughtful article I have read on the issue is Apology Subverted:  The Commodification of Apology.  The article's author, Lee Taft, argues that apology loses its moral force if used as a bargaining chip, particularly where the transgressor is protected from liability for his admission of wrongdoing.

See also Marlynn Wei's 2006 article, Doctors, Apologies and the Law, an Analysis and Critique of Apology Laws from the Yale Law School Student Scholarship Series and Erin O'Hara's Apologies and Thick Trust -- What Spouse Abusers and Negligent Doctors Might Have in Common , which I've blogged about earlier here and here.   

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As I prepare to teach Selected Issues in ADR:  Employment (with master employment mediator Stefan Mason) at the Straus Institute in the Spring of '07, I find myself inspired and amazed at the vast amount of wisdom tucked away in books with names like "Resolving Conflicts at Work," a volume I would be unlikely to pick up unless it had, as it does, Ken Cloke's name attached to it.  

Below, a short excerpt on the necessary attitude toward conflict for true resolution and where that conflict can be located:  

The German philosopher Nietzsche wrote, "when you look into the abyss, the abyss also looks into you."

Looking into your conflict means giving up your illusions, no longer seeing yourself as a victim or other people as enemies.  It means giving up your fear of engaging in honest communication with someone you distrust or dislike.

For example, consider the following:  how far apart are people when they are in conflict?  There are three correct answers:  first, they are an infinite distance apart because they cannot communicate at all; second they are no distance at all because their conflict makes them inseparable; and third, they are exactly one step apart because either of them can reach out and touch the other at any moment.

This leads to a follow-up question:  if this is so, where are their conflicts located?  Again, there are three correct answers:  first, they are located in the mind of each person because each person's attitudes, ideas, emotions and intentions are indispensable to the continuation of the dispute; second, they are located between them because every conflict is a relationship; and, third, they are located around them because all conflicts take place within a system, culture, context or environment that influences how they are conducted.

Kenneth Cloke and Joan Goldsmith, Resolving Conflicts at Work.

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