Dispute Settlement Counsel

Posts Tagged ‘Employment Disputes’

Two parties find themselves in a discrimination case and they do not want to litigate it; they want to resolve it out of court.  But clearly one of the interests – often a primary interest – is determining the appropriate measure of money damages to be paid to the person who was allegedly discriminated against.

If you went to court, this would be decided by a judge or jury after hearing testimony and considering documented evidence, after a year or two or more of litigation process.  If you chose arbitration, the arbitrator would make a binding and un-appealable decision after considering the applicable law and the relevant evidence and testimony presented. If you mediated the matter, a mediator would either be evaluative in his approach and offer information from cases with similar circumstances and help parties reach a number they feel is fair, or use a shuttle diplomacy style, going back and forth between the parties in separate rooms and in confidence.

The shuttle mediator will basically chisel away at the gap between the parties’ number until they reach a “yes” number.  Every so often he will forcefully or subtly remind the parties that if they don’t settle, they will incur the extra expenses that come with continuing the litigation and eventually trying the case.  He will also test the risk aversion levels of the parties by reminding them that juries are very unpredictable and uncertain and the parties really don’t how a jury might decide.  He will compare the certainty of a number they agree upon through mediation with the unknown of a potential runaway jury that could either come back with a defense verdict or award a huge amount of damages.  He will stress that that decision is then out of their control, and could then get appealed. Read the rest of this entry »

You find yourself in a dispute, let’s say it’s a sexual harassment case and you are the employer and alleged wrongdoer. You don’t want to litigate this matter for lots of reasons: it’s too expensive; it would take too long; it would draw too many of your employees, including you, away from the business; it would give the company bad publicity; it would polarize your employees and pit them either for or against the alleged victim, and it would be emotionally draining for those involved. Add to that the facts that the alleged victim is a valued employee you don’t want to lose and you want to be seen in the workplace as an enlightened employer and a company people want to work for because they are treated well.

All good reasons why you don’t want to litigate this matter. Add to those one more: If you litigate, the process, the pace and timing and the outcome is out of your control and someone else – a government agency, a judge, an arbitrator or a jury – will decide the case.

You have heard about alternative dispute resolutions methods like mediation or collaborative law (CL), both of which offer you many of the advantages that litigation cannot offer you. But the one thing those methods don’t give you is closure: If the matter doesn’t get resolved by using CL or mediation, then you have to start over and go to court or an arbitrator, draining you of more time and more money. You want the control over the process and outcome and you want the privacy and confidentiality. You want a less expensive and more streamlined efficient process, one that achieves resolution in a few months or less, not a few years. Read the rest of this entry »

(Third in a series on the workplace)

Last week I had the opportunity to hear a brief presentation by Julian Tynes, the newly appointed Chairman and Commissioner of the Massachusetts Commission Against Discrimination (MCAD), along with MCAD Commissioner Sunila Thomas-George and other members of the MCAD staff.   Chairman Tynes was part of a panel at the 13th Annual Employment Law Conference, sponsored each year by Massachusetts Continuing Legal Education (MCLE) in Boston on December 10.

Commissioner Tynes’ purpose, along with that of his panel, was to update employment lawyers on recent developments, changes, procedures and recent discrimination case decisions at the MCAD.  One initiative that resonated with me personally as a father and former custodial parent was the suggestion that the Massachusetts Maternity Leave Act be changed to become the Massachusetts Parental Leave Act, be gender neutral and give fathers the same right as mothers to take work leave to care for children.

But as a mediator and employment lawyer who represents both employers and employees, what struck me about the MCAD Chairman’s message were three things:  His level of enthusiasm, passion and commitment that was reflected in his message, his taking time to set an example and first thank many of the MCAD staff who was present at the conference, and his view of the work that the MCAD and discrimination lawyers do as working together toward achieving a shared goal – that of eliminating discrimination from the workplace.

Read the rest of this entry »

(second in a series and dialogue on the workplace)
Workplace bullying and harassment are emerging issues to be addressed by employers.  Add the potentially larger problem of increased stress, decreased morale and diminished productivity of those employees who remain after layoffs, who are expected to carry the same load with less people, less experiential knowledge and less resources.  Factor in a still sluggish economy and high unemployment, and we have a workplace perfect storm and a cresting wave of workplace discontent.

I think employers need to be proactive and act ahead of the law. Ignoring this rising crisis may result in a layer of liability and non-compliance resulting from new laws.  Their efforts to run a business may be stymied by a mobilized work force or they may have to close down because they failed to navigate this storm effectively.   This storm will stay in the workplace and be also strengthened by the changes in the workplace brought by information technology and Generation Y.  This is not your father’s work environment anymore.

Read the rest of this entry »

(First in a Series & Dialogue)

Much of my work in preventive law and dispute resolution involves workplace situations and disputes.  I have many great business and non-profit clients and many individual clients who are employees.  I’ve never liked the idea of being pigeonholed as an “employer’s or management side” or “employee’s side” lawyer any more than I wanted to be labeled a plaintiff’s attorney or defense attorney.  Representing both sides has helped me counsel clients better as I understand the perspectives of both sides, along with the views of the other “stakeholders” in workplace issues – families, communities, subcontractors, lawmakers and the consumers of the business products and services involved in the dispute.

Many of my employer clients treat employees wonderfully, even in this challenging economy and an ever changing workplace.  But lately I have been hearing too many stories and fielding too many inquiries and phone calls that reflect an increasingly troubling trend – that of laying off people to cut costs and then expecting those who remain employed after the serious cutbacks to do much more to compensate for the work of those who were laid off.  Those that are left behind are increasingly overworked, under-appreciated, under-compensated and incredibly stressed out, given the extra burden they have assumed. Read the rest of this entry »

Business disputes, especially those involving small closely held or family businesses, almost always include relationships that are ongoing and need to be preserved, and often arise out of issues and unmet interests and needs that lie beneath the surface of the stated positions. 

For these reasons and others set out below, Collaborative Law and other non-adversarial approaches designed to resolve business dispute early have been providing value to parties who have used these methods to solve their disputes.  In addition to the need to keep business relationships healthy, there are other practical reasons that favor the use of a collaborative process and approach: cost and time efficiency, confidentiality, and the ability for the parties to determine their own options for resolution.  For family businesses, mission-based, non-profit organizations, entrepreneurial and social enterprise businesses, the cost, time spent and collateral damage of the litigation process would be devastating to their business goals, operations and budgets.  Collaborative process approaches have delivered good results.  

Read the rest of this entry »

Recently I presented on various aspects of civil collaborative practice at the Global Collaborative Law Council’s Symposium (Dallas Sept. 2009) and the International Academy of Collaborative Professionals Forum (Minneapolis Oct. 09).  One constant observation, in these two instances as well as others, is that people want to see and hear how the collaborative law approach can be used in actual civil disputes.  It’s one thing to teach about the idea and the process, but it becomes concrete when people can see how it works.

The next few blog posts are going to briefly summarize how the collaborative law processes can be utilized in resolving different civil disputes.  They draw from real cases and real situations.  Since they are all confidential settlement processes and agreements, I cannot reveal names or specific details.  What can be share is what was accomplished, how it worked, how long the process took to “get to yes” and the approximate legal costs.

Let’s look at a sexual harassment case in which the parties agree to utilize a collaborative dispute resolution approach.  In this case, both sides were represented by counsel; I represented the female employee; a large firm represented the non-profit employer.  Although the other lawyer wasn’t trained in collaborative law, both sides and counsel saw the immediate need and value of a collaborative approach, rather than the alternative of litigation.  Right away, the facts present two very good reasons to use a non-adversarial, confidential dispute resolution process.  Imagine the damage to reputation and funding sources if a case like this goes into a public litigation process, and the emotional trauma the employee will go through? 

It was helpful for the parties to separate the people involved and diffuse the workplace while the case was negotiated.  A collaborative approach allowed us to agree to have the employee work off site during this time.  This met an important need of the employer — relieving the tension and potential for polarization of the workplace – and a need of the employee to be protected from that tense environment.

One interest the employee had was that steps be taken so this kind of thing doesn’t happen to another.  That interest was addressed by a commitment by the employer to conduct regular sexual harassment prevention training for the entire organization. 

Another interest was some acknowledgement of what happened and a sincere expression of remorse by the employer.  That was accomplished in the settlement.  The employee needed another job.  The employer was willing – beyond the usual placement services – to use resources it had to help find subsequent employment for the employee.  That was part of the settlement discussion. 

The time it took from the initial letter from me to the employer’s counsel to resolution was about four months.  Settlement included the above elements and a monetary settlement amount.  Litigation would have likely taken 3 to 4 years.   It’s a bit speculative to estimate what the legal costs would have been had this been litigated, but it is fair to estimate that the legal fees for the employer were probably 20-25% of what they would have been in litigation. 

The collaborative approach taken by the parties and their counsel allowed for creative options for resolution, satisfied their interests, saved them time, money and collateral damage.  The advantages over an adversarial process like litigation or arbitration are more than evident.

Many types of disputes can be resolved with similar efficiency and results using the collaborative law approach.  Should you find yourself in a dispute, think about this comparison.