Job candidates are rarely in a position of power as interviewers decide the fate of their future career prospects. Yet, the winning strategy in these situations is thinking that one has power, in spite of the situation. As a candidate, how can you engineer a powerful mindset? Well, a simple trick is to remind yourself about a time you had power over a situation right before an interview, and invoke the precise feelings associated with that memory – feelings of confidence and competence, as well as decisiveness during decision making.
One of my recent research projects, Power gets the job: Priming power improves interview outcomes co-authored with Joris Lammers (University of Cologne), Derek D. Rucker (Northwestern University) and Adam Galinsky (Columbia University) tested just that idea: as part of a session of individual mock interviews, we assigned business school applicants to one of three conditions. In the first condition, applicants wrote a short essay about a time they had power just before entering an interview. In the second condition, applicants also wrote an essay, but this time about a time they lacked power. Finally, the last group did not write anything.
Then, we asked interviewers the likelihood that they would accept the candidate into a business school. When candidates went straight to the interview, interviewers accepted 47.1 percent of the candidates. However, the admission rate went up to 68 percent for those people in the group who wrote an essay about a time they had power, and fell to a low 26 percent for those who wrote an essay about a time they lacked power. Importantly, interviewers were unaware of the power manipulation we had given candidates. Thus, merely recalling an experience of high power increased candidates’ likelihood to be admitted by 81 percent compared to baseline and by 162 percent compared to those who recalled an experience of powerlessness.
Of course, there are other ways to engineer personal feelings of power. For instance, candidates can wear objects that make them feel powerful, such as a watch or a particular bag - anything that links you with feelings of power.
2. “Behave powerful”
Power is not only a mindset; it is also a behaviour. Small, almost unconscious moves signal power to an audience and can significantly change the outcome of an interview. In her recent TED talk, Amy Cuddy (Harvard University) provides an excellent summary of how non-verbal language can have a profound effect on how people are judged in contexts as varied as hiring or promotion interviews, a sales context or even a date. As such, physical poses such as wrapping legs, hunching or relying on one’s arms are many subtle signals of powerlessness that cast doubt on what candidates say, regardless of the content of the conversation.
The Virtuous Circle of Power
Interestingly, adopting “power poses” does not only affect how interviewers judge candidates, but also ironically reinforces candidates’ feelings of power. In recent research, Li Huang from INSEAD and colleagues had participants take powerful (for example, expansive postures) or powerless (constricted postures) poses and found the former behaved more powerfully than the latter, by taking action more often and thinking more abstractly, two well-known consequences of power. So, behaving in a powerful way is not only important for how interviewers perceive candidates, it is also a key driver of how candidates will behave!
No matter where I go to teach negotiation strategies and tactics, people tell me they feel as if they're bargaining from a position of weakness. You'd think the lawyers at Intel, Qwest Communications, Warner Brothers and Sony Pictures Entertainment or the engineers and managers at Kraft Foods, all of whose people I've trained, would drape themselves in the power of their corporate brand.
Not so. More than 80% raise their hands when I ask them whether they're negotiating from a position of weakness.
That, I suppose, is because I haven't trained those companies' CEO's, GCs or Boards of Directors. But even then I'll bet I could flip a coin on their answer to the question. The Boards of Directors, after all, have to answer to shareholders and federal governmental agencies. CEOs must answer to their Boards and GCs to the CEO. Sometimes all of them feel intimidated by the lady in HR because Human Resources is the hot nuclear core of conflict in the organization.
What, then, can we do to increase others' perceptions that we have power, a perception that is more than half of our bargaining strength.
Conflict is in the house. The evil fairy surrounded the castle with deadly thorns. The "good" fairy put everyone in the castle to sleep. Will you be the valiant Prince in your own dispute story? Or are you the prize? The beautiful one who would prefer to remain unconscious rather than address the great battle between good and evil represented here? Did you hire a lawyer to resolve your dispute for you? Will he make it to the castle in time? Or will he spend the bulk of his energy erecting more obstacles to prevent your adversary from reaching you. By the time both champions reach the castle, will everyone be too bloodied and broke to rise from your bed and put your house back in order?
Though the reasons given for our negotiation hesitancy are insightful and, I believe, spot on, the post moved me to more or less use the HR Capitalist Blog's comment section to write today's post. Here's the intro to Retail and Religion.
Have you ever noticed how bad a lot of Americans are at negotiating? I don't mean the type of negotiation you're doing on eBay right now; I mean real negotiation. The kind where if you're going to win, somebody has to lose. Where every dollar you save or gain comes right out of someone else's pocket. The type of negotiation where you are telling someone directly, either face to face or on the phone, what's acceptable and what's not.
Though my response will not surprise my readers, I'm hoping it will spark a conversation at the HR Capitalist. The intro to my comment here:
Thanks for raising negotiation skills as a matter worthy of discussion among HR professionals. Let me suggest, however, that savvy, money-saving, value-enhancing negotiation strategy and tactics are rarely of the competitive zero-sum variety.
A few bedrock principles of value-enhancing collaborative problem-solving negotiation include: (a) a dollar is not a dollar, i.e., everyone has a different subjective experience of money and its source; the reason for its payment; the timing of its receipt; and, the degree to which it fairly reflects value are just a few of the variables that can make one dollar feel like $10 or $100,000 feel like a slap in the face; (b) HR professionals and their employers possess items of value which are often of greater worth to employees than the cost of the thing to the employer - this means that employees can be compensated $1.00 in value with something that costs the employer 50 cents or, even better, with something that costs the employer absolutely nothing (expressions of gratitude; the inclusion of employees in the decision-making process when the decision will affect the working environment and so on); and, (c) most people are more interested in how their compensation compares to others who do the same or similar work than they are in the unadorned dollar value of their compensation - this I learned from sitting in compensation committee meetings in law firms where litigation partners would become enraged by a $200,000 year end bonus for the sole reason that another partner received a $500,000 year end bonus. It wasn't about money; it was about fairness.
So, do we need to screw up our courage, drop our hesitancy, and go bravely forth into competitive, distributive zero-sum bargaining session to prove our negotiation moxie?
For the answer - or at least one possible answer - to this question, click here.
I hereby agree to submit to binding arbitration all disputes and claims arising out of the submission of this application. I further agree, in the event that I am hired by the company, that all disputes that cannot be resolved by informal internal resolution which might arise out of my employment with the company, whether during or after that employment, will be submitted to binding arbitration. I agree that such arbitration shall be conducted under the rules of the American Arbitration Association. This application contains the entire agreement between the parties with regard to dispute resolution, and there are no other agreements as to dispute resolution, either oral or written.
This decision is made more interesting by the recent Parada decision (.pdf) (covered here and here) where the drafter's failure to attach the JAMS arbitration rules cited in the agreement was one of the reasons the Court concluded the arbitration clause was substantively unconscionable. I think it's safe to say at this point in the development of California law on these issues that it's not malpractice for an attorney to fail to draft an enforceable arbitration clause. But as the opinions multiply, you can be sure some employer will be looking around for someone to name its legal counsel as the source of his discontent, blame its law firm for having to bear the expense of litigation, and claim damages as a result.
The best protection for drafters of arbitration clauses (particularly in California where the Courts remain suspicious of adhesion arbitration contracts) is to be familiar with all the case law on the topic in the last five years; to avoid any provision the Courts have used to tip the "sliding scale" in favor of non-enforcement and include those provisions which favorably incline the courts to enforce the clauses.
Patrick Deane of Nestlé is senior counsel to the largest food company in the world, and the disputes he runs into involve distributors, retailers, suppliers and consumers in every part of the globe. His ideal mediator combines logic and intuition; a concern for detail; and the knack of an epatheic listener. He noted that commercial disputes — even financial ones — are seldom dry, but instead involve personalities, risk of loss of face, and other human attributes just as much as more personal claims do. The question of subject-matter expertise was of little importance to Deane, compared to these essential qualities in a mediator who must be expert in a process that, at heart, is aimed at cost effectiveness. “A lack of industry expertise has never caused a failure of the mediation process.
Here's my opinion (as if you didn't already know). As Colin Powell says, the most important knowledge to have in international negotiations is the other guy's decision cycle. I imagine the great predictor, the political scientist and Hoover Institute Fellow Bruce Bueno de Mesquitas would say something along the same lines (see TED lecture below). See also the NYT piece, Can Game Theory Predict When Iran Will Get the Bomb?
What is the "other guy's" decision cycle? It is comprised of every interest he must satisfy and every person he is accountable to for the foreseeable (and probable unintended) consequences of that decision. Personal injury attorneys turned mediators are well acquainted with the decision cycles of both Plaintiff and Defense counsel as well as with the interests, needs, and desires of injured Plaintiffs, on the one hand, and insurance adjusters and their supervisors on the other. Employment attorneys turned mediators are also deeply knowledgeable about the decision cycles of counsel on both sides of the table (one usually specializing in employees and the other in employers) as well as with the interests, needs and desires of terminated, demoted, or harassed employees on the one hand and of employers - both large and small - who often feel as if the Plaintiff is little better than a highway robber. Judges turned mediators are better acquainted than anyone else of the decision cycles of juries -- a jury verdict being the alternative to a negotiated resolution.
You knew I'd come to my own "specialty" knowledge. Some of it is industry specific -- insurance and financial institutions, for instance, and the garment, manufacturing, health care, commercial real estate, construction, and technology industries. Though my experience in these fields adds some value to my commercial mediation practice, what I'm most skilled at is knowing the decision cycles of commercial litigators and their business clients. I understand, for instance, the clients' reporting relationships; the metrics against which their performance and that of their corporate superiors are measured; the impact of SEC reporting requirements in "bet the company" litigation; and, the effect settlements in nine or ten figures might have on upcoming plans for mergers or acquisitions.
I can read a financial statement.
At a minimum, I can ask the questions necessary to obtain the knowledge required to ascertain the interests that must be satisfied by both parties to transform the litigation into an opportunity to make a business deal. And I know how to make the commercial clients happy with their attorneys' final resolution of the business problem burdened with the justice issue that brought the case into court in the first instance.
I am also schooled in the "field" of conflict resolution. I understand at depth the cognitive biases -- universal tendencies in the way we think -- that inhibit rational decision making. I know how conflict escalates and, more importantly, how it can be deescalated. I understand the role emotion plays in decision making (particularly the emotion most common among business litigation clients - anger); the gentle (and not so gentle) art of persuasion and, perhaps most importantly, the optimal negotiation strategies and tactics for the business problem at hand.
And, I know in the knuckles of my spine what keeps commercial litigators awake at night, worrying about the next strategic, tactical, legal or extra-legal move to make; how to explain to the client that the case has suddenly gone south; and, how to deliver that bad news to the client in a way he or she can hear it and successfully report it to the GC, the CEO, the Board of Directors or e ven the shareholders.
I know this sounds like a lot of boastful self-promotion (it is). Please don't take my word for it. Anyone charged with finding, retaining and hiring a mediator to assist the parties in resolving a piece of hard-fought, sophisticated, complex commercial litigation would do well to check with his or her peers on any mediator's boastful self-appraisals.
This is what I recall of mediator-hunting, however. I'd send out a list to my colleagues. I'd invariably get back opinions that were all over the board. He/she is great with clients but usually ends up splitting the baby in half. He/she talks too much and listens too little. He/she marginalized the client and made me look bad. He/she charges $15,000 per day and is one of the go-to mediators for this type of case but I was unimpressed, as was the client. This guy/gal can settle anything. Brilliant. Magical.
So what's a beleaguered litigator to do? Ask people you respect both inside and outside your law firm. Ask how the mediator handles the "process dimensions" of the mediation. Does he/she simply carry numbers and rationales back and forth between separate caucus rooms. Can she give bad news to both sides. Can he go beyond positional, zero-sum bargaining and into interest-based negotiated resolutions? Is the client happy with the result and with the process? After you've done this basic research, call the mediator yourself and ask him/her about the way in which she/he might handle the mediation of the particular matter you need to have resolved. You should not only have the best information possible in making your choice, you should get a fair amount of terrific free advice and external brain-storming along the way.
I really just meant to cite the Business Conflict Blog and get back to revising The ABC's of Conflict Resolution - my second draft due on October 30.
So what's my answer to the question whether the mediator should have industry knowledge? That answer lies, as most legal problems do, in the gray zone. Industry knowledge helps. But every commercial litigator knows that we can learn any industry if we have a basic understanding of how commercial enterprises work. That's what I know -- commercial litigation -- and it is the reason I don't mediate personal injury or employment disputes with anyone below the rank of senior executive. I don't know the right questions to ask and I don't know -- at depth -- the parties' or counsel's decision cycles.
My own personal 200-year present spans the life of my maternal grandparents who were nine years old in 1909, and that of my step-children’s children, who (assuming they procreate on a reasonable schedule) should be ninety-five'ish in 2109.
My imagined grandchildren,  born sometime between today and 2014, will not be strangers to any of my grandfather’s technologies. Despite the advent of compact fluorescent light bulbs, the early lives of my step-children's children will likely pass under the glow of the same incandescent lights that brightened granddad’s one-room school house. They will be transported to school in cars with internal combustion engines, learn the same alphabet from the same cardboard and paper books (as well as from the "e" variety)  and play many of the same games he did – hop scotch, jump rope and ring-around the rosy.
Change will etch itself into the lives of my grandchildren as surely as it did my own, my parents' and my grandparents'. Hybrids will give way to fully electric (and perhaps hemp-powered) vehicles (effective or defective) and though electricity will continue to be generated by hydroelectric dams, wind farms and nuclear power plants, some new and unimaginable source of power will surely push back the nights of my grand children's children. 
Law, politics, society and culture also exist in the 200-year present of conflict resolution. In my personal 200-year span, the law seems to have changed the most profoundly. Was it the law first and culture later? Or do they weave our future together?
The first U.S. woman lawyer, Myra Bradwell, was admitted to practice a mere ten years before my grandmother was born. Mrs. Bradwell’s legal career was the subject of one of the sorriest U.S. Supreme Court decisions ever handed down, in which the Court opined,
The civil law as well as nature itself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say the identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea for a woman adopting a distinct and independent career from that of her husband … for these reasons I think that the laws of Illinois now complained of are not obnoxious to the charge of any abridging any of the privileges and immunities of cities of the United States.
My grandparents', parents' and step-children's 20th Century was dominated by genocide on a scale and a technological precision unimaginable to our earlier forebears. Mid-century brought with it the threat of nuclear annihilation but also liberated millions of people enslaved by colonialism. We cured polio in my own lifetime with both "dead" and "live" vaccines (neither of them counterfeit) - a singular moment in scientific history during which no one took ownership of the cure and no one tried to stop others from seeking another, a problem Patently O addressed this week in Reverse Payments.
Whether god or satan, heaven or hell, war or peace "won" the twentieth century, the world's greatest peace-making body was created during it -- the United Nations. And here in the U.S., the “living room war,” Viet Nam, coupled with the largest generation of adolescents ever to grace American society, ended the forcible induction of young men into the military. 
With the recent discovery of our earliest ancestor, Ardi, our biological and social lives exist in a 4.4 million year now. Our physical bodies “evolve” in the womb along the same lines as did our species and, once born, we carry with us our earliest organs.  Most critical of these to conflict escalation and avoidance is our “fight-flight” mechanism – the amygdala. And the most pertinent biological agents to promote the collaborative resolution of conflict are our “mirror neurons” which
provide a powerful biological foundation for the evolution of culture . . . absorb[ing] it directly, with each generation teaching the next by social sharing, imitation and observation.
How we’ve manage to survive despite our tendency to misread one another’s actions, intentions and emotions, is often the subject of those who advise us how to choose and move juries -- here -- Anne Reed at Deliberations (explaining why "they" don't see things like "we" do here); and, the Jury Room (explaining why pain hurts more intensely when we believe it's been intentionally inflicted here).
The Most Effective Conflict Resolution Technology is the Oldest
One of our true original gangsters, Al Capone, is reported to have said that “you can get much further with a kind word and a gun than you can with a kind word alone” and one of our greatest Presidents, Theodore Roosevelt said “speak softly and carry a big stick.”
As Robert Wright, author of The Moral Animal explained, had Tit for Tat been tossed into the game with 50 steadfast non-cooperators, there would have been a 49-way tie for first place. But none of the players' programs failed to cooperate in at least some circumstances, leaving Tit for Tat the clear victor. According to Wright, humans, like the programs in Axelrod's competition, are evolutionarily “designed” to cooperate under at least some circumstances. The engine and benefit of cooperation is present in our neurochemistry. When scientists observed the brain activity of volunteers playing the Prisoner’s Dilemma game, for instance, they found that the participants' “reward circuits” were activated and their impulsive "me first" circuits inhibited when they cooperated. Cooperation, retaliation, forgiveness and a return to cooperation. Tit for Tat.
We don't "dis" lawyers here at the Negotiation Blog. We simply remind ourselves that our primary purpose is the promotion of justice, with a stable societal order closely behind. Most people don't understand, for instance, that Shakespeare's famous the first thing we do, let's kill all the lawyerswas not an insult. In King Henry IV, Act IV, Scene II, Shakespeare's sentiment was not his own, but that of a revolutionary who wished to destroy the social order.
The historic "present" of laws and lawyers is in the thousands, not simply the hundreds, of years. Hammurabi (make of his choice for the memorialization of his laws what you will) was the sixth king of Babylon, remembered for creating -- in his own name (and likeness?) - the first written and systematic legal code.
For the wrongful killing of another, for instance, the victim’s kin were paid according to the social status of the deceased party. Thus the ‘man price’ for killing a peasant was 200 shillings and that for a nobleman 1200 shillings. Payments were not, however, tailored to the loss, but fixed according to types of affront, a distinction we continue to make when we punish intentional torts more severely than negligent ones. >
Lawyers, litigators and trial lawyers are too often demonized by the ADR community as if you could get someone to sit down to negotiate without first pointing the gun of litigation at their heads; I salute you (and myself, for that matter!) for bringing us all to the bargaining table. See Steve Mehta's recent post at Mediation Matters, Factors When Peace Makes Sense for a note that touches upon the symbiotic relationship between litigation and mediation, litigators and mediators.
I shouldn't cite single legal blogs twice, but I cannot resist this quote of Scott Greenfield's on another pundit's view of the future lawyers have in store for them, i.e.,
shucking oysters for a living if we don't accept a future of lawyers being piece workers in factories, sending our work off to Bangalore in pdf files and complementing people on their choice of forms at Legal Zoom.
Which came first? Public civil trials or private arbitrations? You’ll be surprised, I’ll wager, to hear that arbitration was one of the earliest forms of dispute resolution, practiced by the juris consults of the Roman Empire. Roman arbitration predates the adversarial system of common law by more than a thousand years. 
Ah, the glory of Rome! The juris consulti were (like too many mediators) amateurs who dabbled in dispute resolution, raising the question whether they (and we) should be certified or regulated as Diane Levin asks at The Mediation Channel this week. The Roman hobbyists gave legal opinions (responsa) to all comers (a practice known as publice respondere). They also served the needs of Roman judges and governors would routinely consult with advisory panels of jurisconsults before rendering decisions. Thus, the Romans – god bless them! - were the first to have a class of people who spent their days thinking about legal problems (an activity some readers will recall Ralph Nader calling "mental gymnastics in an iron cage").
It was Buckminster Fuller who famously opined that the "significant problems we face cannot be solved at the same level of thinking we were at when we created them." If you keep this aphorism in mind for the remainder of this post, you'll likely have some extraordinarily innovative comments to make in the comment section below.
As the Law Guru wiki reminds us, we can trace the adversarial system to the "medieval mode of trial by combat, in which some litigants were allowed a champion to represent them." We owe our present day adversarialism, however, to the common law's use of the jury - the power of argumentation replacing the power of the sword.
The Act abolishing the infamous Star Chamber in 1641 also granted every "freeman" the right to trial by "lawful judgment of his peers" or by the "law of the land" before the Crown could "take or imprison" him or "disseis[e] [him] of his freehold or liberties, or free customs." Nor could he any longer be "outlawed or exciled or otherwise destroyed." Nor could the King "pass upon him or condemn him."
English colonies like our own adopted the jury trial system and we, of course, enshrined that system in the Fifth, Sixth, and Seventh Amendments. Whether this 17th century dispute resolution technology can be fine-tuned to keep abreast of 21st century dispute creation technology (particularly in the quickly moving area of intellectual property) remains one of the pressing questions of legal and ADR policy and practice, particularly in a week in which a Superior Court verbally punished the lawyers before it for filing The Most Oppressive Motion Ever Presented (see the Laconic Law Blog). The motion?
Defendants['] . . . motion for summary judgment/summary adjudication, seeking adjudication of 44 issues, most of which were not proper subjects of adjudication. Defendants’ separate statement was 196 pages long, setting forth hundreds of facts, many of them not material—as defendants’ own papers conceded. And the moving papers concluded with a request for judicial notice of 174 pages. All told, defendants’ moving papers were 1056 pages.
Mediator, author and activist, Ken Cloke, suggests that interest-based resolutions to conflict must replace power and rights based resolutions if we expect to create a future in which justice prevails. As Ken wrote in Conflict Revolution:
Approaching evil and injustice from an interest-based perspective means listening to the deeper truths that gave rise to them, extending compassion even to those who were responsible for evils or injustices, and seeking not merely to replace one evil or injustice with another, but to reduce their attractiveness by designing outcomes, processes, and relationships that encourage adversaries to work collaboratively to satisfy their interests.
Evil and injustice can therefore be considered byproducts of reliance on power or rights, and failures or refusals to learn and evolve.
All political systems generate chronic conflicts that reveal their internal weaknesses, external pressures, and demands for evolutionary change. Power- and rights-based systems are adversarial and unstable, and therefore avoid, deny, resist, and defend themselves against change. As a result, they suppress conflicts or treat them as purely interpersonal, leaving insiders less informed and able to adapt, and outsiders feeling they were treated unjustly and contemplating evil in response.
As pressures to change increase, these systems must either adapt, or turn reactionary and take a punitive, retaliatory attitude toward those seeking to promote change, delaying their own evolution. Only interest-based systems are fully able to seek out their weaknesses, proactively evolve, transform conflicts into sources of learning, and celebrate those who brought them to their attention.
These are the words I leave with the readers of Blawg Review #234 because they are the ones that informed my personal and professional transformation from a legal career based on rights and remedies to one based upon interests and consensus.
Whatever my own personal 200-year present was, is and will be, it is pointed in the direction of peace with justice, with an enormous and probably unwarranted optimism best expressed by the man after whom my law school was named: Martin Luther King, Jr. - the arc of history is long, but it bends toward justice.
Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues. Next week's host, Counsel to Counsel, will devote its round-up of the week's best legal posts to the Great Recession.
 Earlier scientific theory posited that each human embryo (see Embryo Mix-Up at the Proud Parenting Blog) passes through a progression of abbreviated stages that resemble the main evolutionary stages of its ancestors, i.e., that the fertilized egg starts as a single cell (just like our first living evolutionary ancestor); as the egg repeatedly divides it develops into an embryo with a segmented arrangement (the “worm” stage); these segments develop into vertebrae, muscles and something that sort of looks like gills (the “fish” stage); limb buds develop with paddle-like hands and feet, and there appears to be a “tail” (the “amphibian” stage); and, by the eighth week of development, most organs are nearly complete, the limbs develop fingers and toes, and the “tail” disappears (the human stage). It turns out that this one-to-one correlation was too simplistic, but it remains safe to say that our biological development still passes through several stages that “recapitulate” the evolution of our species.
 The amygdala is a region of the brain that permits the formation and storage of memories associated with emotional events. It permits us to “read” the emotional responses of our fellows and is thought to facilitated our ability to form relationships and live and work in groups. It is also the source of our “fight or flight” response to danger.
Studies show that some mirror neurons fire when a person reaches for a glass or watches someone else reach for a glass; others fire when the person puts the glass down and still others fire when the person reaches for a toothbrush and so on. They respond when someone kicks a ball, sees a ball being kicked, hears a ball being kicked and says or hears the word "kick."
“When you see me perform an action - such as picking up a baseball - you automatically simulate the action in your own brain,” said Dr. Marco Iacoboni, a neuroscientist at the University of California, Los Angeles, who studies mirror neurons. ”Circuits in your brain, which we do not yet entirely understand, inhibit you from moving while you simulate,” he said. ”But you understand my action because you have in your brain a template for that action based on your own movements. “
 Looking toward the future, the Neuroethics and the Law Blog predicts that in the “experiential future, we will have better technologies to measure physical pain, pain relief, and emotional distress. These technologies should not only change tort law and related compensation schemes but should also change our assessments of criminal blameworthiness and punishment severity” here.
The adversarial system of medical negligence fails to satisfy the main aims of tort law, those being equitable compensation of plaintiffs, correction of mistakes and deterrence of negligence. Instead doctors experience litigation as a punishment and, in order to avoid exposure to the system, have resorted not to corrective or educational measures but to defensive medicine, a practice which the evidence indicates both decreases patient autonomy and increases iatrogenic injury.
(Iatrogenic, by the way, is a fancy term for “we have know idea whatsoever what the source of this ailment is). Chris is looking for comments so run on over there if you’ve been thinking about medical malpractice litigation during the marathon American health care debates.
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!
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.
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).
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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:
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.
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."
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.
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.
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 andKaneesha 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.
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.
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)
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.
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.
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.
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.
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."
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.
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. . . .
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!
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.
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.
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.
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.
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.
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.
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.
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.
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.
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?
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.