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1. Facilitative mediation – mediator is truly neutral. He provides a structure for the matter to be resolved, by asking questions and rephrasing issues. He does not offer an opinion on what the merits of either side are, or who is likely to win in court. He assists the parties in reaching a resolution, by helping them find points of agreement.
2. Evaluative mediation – the mediator points out the weaknesses in each party’s position, predicts what the outcome might be in court, and offers recommendations for resolution. Mediator actively influences the outcome of the mediation.
3. Transformative mediation: used in the U.S. Post Office mediation program, which mostly concerns issues between current employees. The idea is that through mediation, each party will have the opportunity to express his concerns and issues to the other party. The mutual understanding that comes from this process will assist the parties in working out the conflict between them. The approach is based on the theories expressed in book called The Promise of Mediation, by Bush and Folger
Many mediators will use a combination of styles, even in one mediation. There are other differences as well: some mediations are completely voluntary as to whether the parties agree to mediate or agree to resolve the case. Other mediations are mandatory, as in court-ordered mediations. Some are binding.
A mediator’s proposal is generally used when the parties are unable to come to an agreement on their own. In that case, the mediator may make a proposal to both sides, which will only be accepted if both parties agree. Generally the mediator does not let the other party know when one accepts and the other does not. That is because the accepting party does not want the other party to think that the mediator’s proposal is now their offer, unless the other party agrees.
A common mediator’s proposal is to split the difference between the two parties. This works most easily when the two parties are not far apart. They probably have had the number in mind, but don’t want to offer it and then be pushed further up or down.
The mediator is present to make sure that there is an atmosphere of mutual respect and decorum, and one party doesn’t intimidate the other side
1. No threats
2. No cross examination of opposing party
3. No interrupting when the other party is speaking
4. Each side decides whether to resolve the case
5. If one side is overcome with emotion, separate them into different rooms
6. Limit the amount of time the parties have to interact
7. Question of power: one side may have an attorney and the other doesn’t; one may be unwilling to seriously negotiate because other party is unrepresented – answer to that: weaker party can say no to terrible offer
8. Sometimes unrepresented claimant says “it’s a matter of principle”, and refuses to compromise – not a matter of money – example: waitress at fancy investment house
2. Mediation in Court
Principles of Mediation:
-parties typically sign a confidentiality agreement (bring samples)
-sometimes everyone rips up their notes of the mediation
-agreement includes that they won’t ask the mediator to testify if there’s a later dispute – documents will speak for themselves
-mediator is not involved with either party
-the parties may jointly select a mediator
-or one may be appointed
-mediator should disclose at the beginning of the mediation whether he or she has any prior relationship with anyone in the room – not good for anyone to wonder why you seem to know someone – need to be clear about it
- can ask the parties if they are comfortable with you as a mediator – if not, immediately stop
Court
Some courts have mandatory mediation programs –
They may require mediation right after a case is filed
-theory is that the parties have not spent all their money on discovery, so may be able to settle
-may require it after discovery closes but before trial, to see if the parties can avoid the time and uncertainty of trial
NOTE: generally won’t be productive if there is a summary judgment motion pending
In New York City, there is mandatory mediation on all employment discrimination cases, right after they are filed
-panel of attorneys have been trained to handle them
-Court did this because of high volume of these cases – wanted to reduce numbers
-mixed reaction: many attorneys have said that it’s a waste of time because the attorneys aren’t familiar with the subject area (real estate lawyers), or aren’t experienced mediators, but there has been some success
Question: is mandatory mediation as successful as voluntary mediation in resolving cases? I think not, since some of the parties are unwilling participants just fulfilling their requirement
Who Should Conduct a Court Ordered Mediation – not the Judge
Mediator should be objective and neutral, and not involved with outcome of case
Participants to a mediation should be able to discuss their case freely with the mediator
Probably would not want to do that with the Judge, who would later decide the case if mediation fails
Don’t want to discuss the case freely with the person who will be deciding it
As a mediator, you are always hoping they will tell you what their true concerns are – such as their client really wants to settle because they need to move out of the area
Most of the time they don’t completely level with you – have to assume that both sides are lying a little bit, to make their side seem stronger
They can’t lie to a judge
Plus a judge may get angry if you don’t settle, and take it out on you in the decision
Qualifications for a Mediator (check EDNY Rules)
Objective
Neutral
Better if they have an understanding of the subject matter, language, culture
NOTE: The U.S. Post Office has an active mediation program for its employees – uses mediators who are familiar with the area where the dispute occurred – for example, a mediation in Puerto Rico would be handled by someone from Puerto Rico who speaks Spanish
Exercise 1. Salesman
Characters:
Mediator
Salesman
His Attorney
Employer
His Attorney
The Salesman has been employed by the Company for 40 years. He has been very successful, bringing in 15 million dollars a year in business. When he started working for the company, it was customary for salesmen to take their clients out for a 6 martini lunch, and not to return to the office after lunch. He also traveled internationally for the Company, and would include many personal items on his expense account, including travel for his girlfriend, staying in 5 star hotels, and side trips unrelated to work.
Over the years, the Company changed its practices. Salesmen were expected to start and end their day in the office, and to limit the time and cost of the lunches they had. When they were traveling for the Company, they were given a limit on cost for hotels and meals. They were not permitted to bring guests with them on travel without paying for them, and could not take personal excursions on company time. The Salesman did not conform to these rules.
Because he was so valuable to the Company, the Salesman was allowed to continue his old spending habits without much criticism. He was the oldest Salesman by twenty years, but he sold the most business. He was well compensated. He earned $1 million per year, plus received a new Mercedes car each year.
Then the economy failed and the business struggled. The Salesman no longer sold the business he had in the past. The Company decided it could no longer afford the business habits of the Salesman, and told him he had to follow the expense procedures of the Company. They issued him a final warning. Because of the long relationship between the Salesman and the Company, and the fact that the Salesman and the President of the Company are step brothers, the parties have decided to mediate.
Salesman’s Position. I have brought in more than $100 million of business to the Company in the 40 years I’ve been here. As long as the economy was strong, the Company never cared what I did. Now all of a sudden all the expense accounts I’ve submitted over the years are wrong, and I’m on final warning. I think this is because of my age.
With respect to those travel expense accounts, I haven’t done anything the President hasn’t also done. I have traveled with him on business, and we stayed at the same luxury hotels and ate at the same fancy restaurants. We both bought a Mercedes for ourselves and charged it to the Company. If this goes to court, I will bring out the pictures I have of the two of us together on the business trips, with our girlfriends. All that being said, I am ready to retire, if they make me a good enough deal.
Company’s position. No question that the Salesman has been very valuable to us over the years, but he hasn’t brought in more than his salary in the last 5 years. He refuses to conform to the new business rules on travel, and his work habits of disappearing after lunch are a bad example to the other employees. We can no longer afford to keep him.
Candidly also, I do not want the issue of our expense accounts to be raised in a public forum. If my wife found out, I could be in big trouble.
Also, he is my step brother. Our mother has said that until I work this out with him, she is not speaking to me. She is 85 years old and in fragile health. For the good of my family and my company, I need to work this out.
Result:
2.One Armed Typist
A one armed person was hired as a receptionist, to answer the phone and greet people when they came into the lobby. His work performance was fine. Business was slow however, and the company decided they would like him to do some typing, to make up for a person who left the company.
The Employee had a birth defect, in that he was born with an abbreviated arm on one side. He could not reach the keyboard with one hand, so that effectively he was typing with one hand. The Company decided that he was too slow, and wanted greater production.
Physically he could only touch the keyboard with one hand. He is willing to help out, but he is limited in what he can do. He does not want to leave the job, and the Company did not want him to go. There is a hiring freeze, and the company would not be able to replace him.
Mediate and let me know the result.
Characters:
Piano Tuner
Piano Owner
Mediator
Facts:
The Piano Owner had not had his piano tuned in 7 years. His son was coming to visit, and the Owner wanted to have the piano tuned so his son could play it. The piano was a famous model, and the Owner had had trouble finding someone competent to tune it. On the recommendation of his son’s former piano teacher, he hired an experienced tuner. The man said he was familiar with this type of piano, that it would cost $500 to tune it, that he was capable of handling any problems, and he could get this done in half a day. The Owner was delighted, and said I leave this completely in your hands.
When the Owner returned, the Piano Tuner presented him with a bill for $1,000. He said that because the piano had not been properly maintained over the years, and because it was a hard piano to tune, some of the strings had broken while he was tuning the piano. He replaced them all, which took extra time and parts, and accounted for the $500 difference. The piano now sounded better than it had in years.
What result?
3.Warehouse worker
Emily Lewis is employed in a warehouse, tracking deliveries. She has an immune system problem, which results in sensitivity to cold temperatures. In particular, her fingers turn blue and she loses her digital dexterity. The warehouse is unheated, with a high ceiling, and the doors are constantly opening for trucks to deliver packages. Her job is to type in package numbers to record deliveries as they are received.
Emily has no problem performing this job in the warm summer months, but she has difficulty functioning in the winter. She requested a reasonable accommodation, which was to perform her job duties inside the office area adjoining the warehouse. She provided a doctor’s note confirming her condition, and she limited her request to times when the temperature in the warehouse is below 60 degrees.
The Employer has not agreed to this request, because they don’t want Emily to take packages away from the delivery area. They maintain that they have a strict schedule with respect to moving the packages, and they cannot deviate from their established handling procedure. They are also concerned about losing packages.
The Employer considers Emily a valuable employee, because she is dependable and accurate. They would like to have her back at work.
The warehouse is three stories high, with doors that are frequently open on one side for deliveries. The Employer does not want to have cords running across the floor for portable heaters, because they are concerned that employees will trip on them. They also do not want high voltage heaters that might cause a fire, because they did have a warehouse fire in the past which was caused by a space heater.
Emily has been out of work for six months because of this impasse, and has lost $12,000 in pay. She does not want to leave the job, because it provides medical benefits.
Please mediate this, and let us know how/if you resolve it.
The claimant, Ms. Banker, has been an investment counselor for 45 years. She is currently 67 years old. She maintains that she has been denied clerical support, which has hampered her ability to serve clients. Previously she had her own assistant, and now she shares with two younger male colleagues. She says that older male investment counselors with experience comparable to hers have two or three assistants. She filed an official complaint with the Human Resources Department, and says that after that point, matters deteriorated. She thinks that the firm has no idea about its responsibilities under the federal employment discrimination laws. She alleges that the Bank is trying to force her to quit, because of her age and sex.
Bank’s viewpoint
The Bank has been going through a series of layoffs, because of financial difficulties in the current market. They allege that Ms. Banker has gone through 23 assistants in 3 years, because she is very demanding. There is no one left in the secretarial pool who wants to work with her.
Nevertheless, the Bank values Ms. Banker highly. She is their top producer, and they don’t want to lose her. They say that no customer has ever filed a complaint about her. They have offices throughout Westchester County, where the Charging Party lives, as well as in Long Island and New York City. They would be willing to offer her a position in any of them.
Mrs. Banker
Mrs. Banker has a base salary of $150,000 per year, and received a bonus of $600,000 last year. She also has stock options worth $200,000, half of which vest next year and half the year after. Under the terms of the company’s plan, she would lose these options if she leaves the company.
She doesn’t want to change offices, and she wants her own assistant. There are other firms that want her, if this one isn’t willing to resolve this.
Please mediate, and advise about the results.
Overtime
Claimant says that her Employer has failed to pay her overtime, for the hours that she worked in excess of 40 hours per week. The Employer says that she is not entitled to overtime, because she is an exempt worker who works independently and receives a salary. Claimant provides a recent ruling from the Labor Dept, stating that workers in her job title are non-exempt and entitled to overtime.
It is Employer’s responsibility to record the number of hours its employees have worked. However, because it considered the Claimant to be exempt, no records were kept. The claimant did keep contemporaneous records on her calendar of the extra hours she worked, because she had to pay her babysitter for additional time when she came home late. The company finds her records credible.
Claimant has filed a complaint with the U.S. Labor Dept. If they find in her favor, they may expand their investigation to see whether other employees in her job title have also not been paid overtime. In that case, the Labor Department could order the Employer to pay all the employees in this job title back pay.
Employer’s view
The Employer is very concerned about what the Labor Dept will do if it finds a violation. They want to get the Labor Dept claim settled and withdrawn, to avoid further claims. They acknowledge that the Employee’s records are reliable, and that they did not meet the legal responsibility to keep records themselves. They are willing to pay a substantial amount of money, if the Claimant will leave.
Claimant
Based on the Claimant’s records, if she is paid for all of the overtime, for the time period covered, plus double damages for a willful violation, plus attorney’s fees, the amount due would be $360,000. The Claimant’s annual salary is $56,000. She is willing to leave, but she wants to be fully paid.
How would you resolve this case?
7. Commercial Artist
Employee says that he was fired because he complained about race discrimination. Says that he gave up his career as a freelance artist to work for this company, and he worked for them successfully for more than 13 years. During that time, he let his private clients go, because he was working full time and more for this company.
Company says that he was a very talented and valuable employee, who didn’t get along with his supervisor. They liked his work, and would like to have him come back. But both parties agree that he and the supervisor will not get along, and that supervisor is not leaving.
View of the Employee
He thinks it will take him 3 years to build up his private business again. In the meantime, he can’t explain to people why he isn’t working for this company any more. Being fired looks like he did something wrong, which he says he did not.
He would like to be compensated for his salary loss until he can find comparable employment. He thinks he will not be able to find good work unless what happened with the company can be explained. He is willing to work for them as a consultant, which would demonstrate to the outside world that he has done nothing wrong.
View of the company
The company agrees that the supervisor started criticizing the Employee after he filed a complaint of race discrimination. They do not want to have a race discrimination suit brought against them; they are concerned that it will damage the company’s business. They would be willing to employ him, but they acknowledge that having him work in the same place as the supervisor would not be a good idea.
How would you resolve this case?
8.Teacher – religious accommodation
Long term teacher needed religious accommodation, so that he could leave early on Fridays to get home by sundown. For years, he was assigned to a school in the northern section of the city, where he was able to teach early classes and leave school at 3:00. This allowed him plenty of time to get home by sundown.
Then he was transferred to another school, farther south. The early class schedule was not available, and he was unable to switch classes with another teacher. He ended up taking time off on Fridays. He got disciplined for missing too much school, and was placed on probation. His new school said he was not eligible to transfer back to his old school, because of his current attendance problem. The new school does not consider him an asset, because of his attendance record.
Old school said that he was a valued teacher, who taught at the school for 22 years. They have not been able to find a competent replacement, and would be glad to have him back. He teaches required courses that no one else can manage.
The schools do have some flexibility with regard to hiring and disciplining teachers. With that in mind, how would you have resolved this case?
9. Medical Student
A medical student claimed retaliation. He passed all of his tests and requirements in school, but he filed a complaint about one of his supervisors that she was racist. In response, that supervisor wrote negative false things about him in his academic record, which was sent to future employers and the licensing bureau. The supervisor advised prospective employers that he was unlikely to pass his tests and graduate, and that he had personality problems, all of which was untrue. This caused the claimant to be delayed in getting his medical license and not to be able to accept a job he was offered.
View of the medical school
The medical school is embarrassed because this situation was not handled properly. When they first investigated his complaint, they found that his allegations were true. They issued a report confirming this, but they did not take corrective action. Consequently the supervisor continued to take retaliatory actions against the student. The medical school would like to get this resolved once and for all.
At the time of the mediation, the medical student had received his license and had a good job. He was still concerned that his record had never been cleaned up, and he was worried that the false statements could affect him in the future. He doesn’t trust that the medical school has expunged the false comments. He also wanted some money to compensate him for the time he was delayed in getting a job. He also wants to make sure that the supervisor does not provide any references for him in the future, and that she is not in a position to harm other black students.
How would you resolve this claim?
Waitress
62 year old waitress at an investment firm complained that the chef was using bad language to her and refusing to prepare her orders. She said he was trying to force her out of the firm, so that he could give the job to one of his male friends.
The parties have agreed to mediate.
Firm’s view
The firm investigated, and found that her allegations were true. They spoke to the chef, and asked him to behave professionally. That being said, they valued the chef. He prepared individual Thanksgiving dinners for each of the partners, to their own specifications, and delivered them to their homes. His cooking was superb.
While they liked the waitress, she could easily be replaced. They are willing to pay her two years salary to leave. ($120,000) That being said, she has done nothing wrong, and they are not going to terminate her. If she stays, they would pay her a small amount ($10,000) and might be willing to do some training for the chef and staff on how to behave towards women in the workplace.
Waitress’ view
The waitress thought it over, and initially considered taking a severance package and leaving the firm. It was not easy being mistreated by the chef. But then she realized that she would never be able to replace the job she had. She received a generous salary and a bonus, and lovely gifts on her birthday and Christmas. The job was pleasant: she brought specially prepared trays to the partners and she set up the conference rooms for meetings. It was not hard physical labor. Everyone but the chef was nice to her.
If she worked as a waitress somewhere else, it would be a lot more work. She would have to serve many more customers, she would not receive the gifts or salary she had been receiving, and she would not enjoy it. She realized that she loved the job, and at her age, she would never find a comparable one.
She would really rather stay, but she wants some money for her trouble.
Mediate this.
Videos
1. Consider Mediation
http://youtu.be/vusZamARvVA-
2. Cross Cultural Negotiations
http://www.youtube.com/watch?v=-4GjC0ipJIA
3. Negotiating on the back of a cocktail napkin
http://www.youtube.com/watch?v=V5BTl5ao5G8&feature=youtu.be
Article
International Mediation Institute IMI International Corporate Users ADR Survey January –March 2013 www.IMImediation.org/imi-international-corporate-users-adr-survey-fullresults).
School Lecture
I am a mediator with the U.S. Equal Employment Opportunity Commission
1. Worked there 100 years
2. Appellate attorney
3. Trial Attorney
4. Mediator since 1998 – over 2000 cases
5. Also a court mediator with the U.S. District Court for the EDNY
6. Also a mediator for the American Arbitration Association – Hurricane Sandy insurance claims
Generally what I mediate are employment discrimination disputes involving race, sex, national origin, religion, age, disability
I tell people there are 4 good reasons to mediate at the EEOC:
1. Case can be resolved in one day
2. Free
3. Confidential
4. They control the outcome
High success rate: because process is voluntary
Voluntary whether they mediate, voluntary whether they settle
So self selected for success
Most of the cases involve people who have been terminated
Both sides represented by attorneys
Negotiation for money – lost salary, benefits, attorney’s fees, options vesting
Also reference, U5 language
Evaluative approach where mediator actively participates in result
Frequent use of mediator’s proposal
Sometimes resolve for other things if money not available: two years of free veterinary service; free tuition; twelve months of free deli platters; a tie
More interesting: reasonable or religious accommodation cases
Claimant is working
No danger of being fired
Need to figure out solution for them to continue:
One armed typist
Hearing impaired tax preparer
Teacher with burned foot
Warehouse worker with immune system problem
Low I.Q. fast food worker
Sabbath Day observer
Halloween
Reasons mediation works for us:
EEOC deluged with cases: 100,000 new charges per year
High satisfaction rate among participants: more than 95% said they would use it again
More than 75% resolved – and the parties worked out the result between themselves
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