Arbitration and Mediation Archives

“If I win in arbitration, must I sign away my rights?”

Published on February 9th, 2012 by Alan L Sklover

Question: I reported sexual harassment and false evaluations. I also got two disciplinary write-ups that were trumped up. I just went through an arbitration, and won the right to be reinstated into my job.

In order to get what I won in arbitration, can they make me sign away my employee rights?

M.B.
Safford, Arizona

Answer: M.B.: First and foremost, congratulations on standing up to both sexual harassment and false evaluations!! The more that people stand up for themselves at work, the easier it will be for others to do so. In fact, the more that people stand up for themselves at work, the less that other people will have to. Hat’s off to you!!

Now, let me address your question:

1. When an employee and an employer settle a dispute between themselves – without having to go through a full arbitration or a trial – almost always, as part of the settlement deal, the employer wants, and gets, a full waiver and release of all other claims. This is part of every kind of settlement, whether it is over a car accident or malpractice by a doctor. The idea is this: if we are going to settle, we are going to FULLY settle. So, when things are settled, a full waiver and release of other claims is almost always part of “the deal.” Otherwise, the parties would be concerned that a new arbitration or litigation would start the next day, and the fighting would never be over. It’s like a peace treaty at the end of a war.   

2. However, when an arbitration panel renders an “award,” or a jury renders a judgment (such as your reinstatement), the employer cannot then place conditions – such as a waiver or release of other claims – on its obeying the judgment. By that time, it’s just too late. When the employee wins – like you did – the employer has no say in the terms or the conditions of the final award or judgment. It lost its chance to do just that when it failed to settle beforehand.   

3. But, you must read the arbitration “award” of the arbitrators carefully, for it might cut off certain of your “rights.” It is possible that you (or your attorney) raised, say, four claims, and that the arbitration award dismissed three of the four. In that case, you would have no right to again raise any of those other claims. Also, arbitrators’ authority to make any “award” they wish – even an award that might cut off certain of your rights – is almost unlimited. You, and your attorney if you used one, must read the arbitration “award” very carefully to ensure you know what it is you won, and whether the award, itself, might have cut off any of your future rights.

M.B., bottom line is you won, and you have a right to whatever you won without your employer now having any right or way to put “strings” on your getting what you won. It had a chance to settle, but failed to do so. That was their mistake, and your good fortune for standing up and lasting it out.

Again, M.B., hats off to you!! Hope this helps. Thanks for writing in. 

Best,
Al Sklover

P.S.: We now offer Model Letters entitled “Model Letter for Objecting to Illegal Discrimination – Age, Race, Gender or Disability,” that can be used to help people help themselves if they believe they have been affected by illegal discrimination. To obtain a copy of one of these useful model letters, just [click here.] Delivered by Email – Instantly!

Repairing the World –
One Empowered and Productive Employee at a Time ™

© 2012 Alan L. Sklover, All Rights Reserved.

“10 Best Ways to ‘Get Out Of’ an Agreement to Arbitrate”

Published on November 25th, 2011 by Alan Sklover

Question: Arbitration seems to be the norm lately. Wonder if you might address if there are any ways of getting out of an arbitration agreement if you have already signed? What, if anything, can make it null and void?

Sonia
Redding, California

Answer: Dear Sonia, As someone who is definitely NOT a fan of arbitration of disputes, for many different reasons, I am glad you submitted this question.

1. Understand, first, that the law and the Courts strongly support the use of arbitration of employment disputes. For many years, our legal system has strongly supported resolution of disputes by means outside the traditional court system. This is primarily due to the view that the less taxpayers spend on resolution of disputes – by having to pay Judges, build Courts, and even take taxpayers’ time to be on juries – the better. For this reason, if you have ever “agreed” in some fashion to resolve disputes by means of arbitration, it’s pretty hard to “get out of” that obligation.

2. That said, agreements to arbitrate face the same kinds of scrutiny as do all other agreements. An agreement to arbitrate a dispute is just that: an agreement. So, it must pass the same “tests” as do all other agreements. For example, if you could show that the signature on the agreement is a forgery, the agreement would be “thrown out.” Likewise, if you could show that someone held an actual gun to your head to make you sign it, it would also be “thrown out.” If you feel that you have one or more good reasons not to go forward with your agreed-to arbitration, it is possible that a Court could agree that it should be discarded, ignored or found void.

3. The two primary concerns a Court will consider about an agreement to arbitrate are (a) whether it is mutual, that is, binding on both sides, and (b) whether it sets up a basically fair system of resolution. What a Court will be most concerned about when considering an agreement to arbitrate is whether it provides basic fairness of procedure. For example, if the arbitration agreement said all employees had to arbitrate their claims against their employer, but the employer was not bound to arbitrate its claims against the employees, it would be deemed “unconscionable” for lacking “mutuality of obligation.” As another example, if the arbitration system that you agreed to utilize gave you only five minutes to give your “side of the story,” it would probably be considered “unconscionable” for denying the parties a true chance to express their grievances, and thus would likely be found unacceptable and void.

4. Here are the 10 most common reasons for which I have seen Courts reject agreements to arbitrate, and held those agreements to be either inapplicable, ineffective or void:

i. Lack of Actual Consent: In order for there to be a binding agreement on any subject, the law requires that the parties actually knew they were entering into that agreement, and were not tricked into becoming bound by it. So, for example, if you never actually signed an agreement to arbitrate but, instead, it was hidden on Page 93 of your Company’s Employee Handbook, chances are it would not be enforced. Or, if the agreement to arbitrate was “buried” in Paragraph 61 of an agreement labeled “Confidentiality Understanding,” it might be deemed unenforceable. (This is like finding an agreement to arbitrate disputes with a television manufacturer hidden in a small little booklet in the large cardboard box in which the television was shipped.)

ii. Not a Covered Dispute: If the dispute in question was not one that was meant to be arbitrated, it shouldn’t be. So, for example, if the arbitration agreement says “All disputes arising in the employment relation are to be arbitrated,” but what happened here is that your boss met you at a Saturday baseball game and punched you in the nose, that dispute would likely be found to be outside the intended scope of arbitration agreement.

iii. In violation of a statute (a law passed by Congress or a state legislature): As one example, in most states, injuries sustained by an employee while on the job must be resolved by a separate system of resolution called “Workers Compensation.” An arbitration agreement that required the employee to ignore that law, and instead arbitrate such a dispute would likely have no effect at all.

iv. Lack of Mutuality: If the obligation to arbitrate is not “mutual,” that is, only the employee must arbitrate, while the employer is given the choice to arbitrate or litigate, it will likely be deemed unconscionable, and of no effect.

v. Biased Arbitrator: If the arbitrator or the arbitration company that is required to be used by the arbitration agreement is not truly “neutral” the arbitration agreement would likely be deemed void. So, for example, if the named arbitrator in the arbitration agreement was the brother of your employer, the agreement to arbitrate would likely be thrown out.

vi. Limitation on Remedy: If the arbitration agreement significantly limits possible remedies to an unfair extent, it will likely not be deemed acceptable. So, for example, if the arbitration agreement said, “The most an arbitrator could give the winning employer or employee is $1,” it would be almost surely deemed void.

vii. Unreasonable Costs: If the arbitration agreement required the employee to pay many thousands of dollars to file the claim and/or have the claim resolved, especially if the employee did not make a lot of money, then the arbitration agreement could be considered void.

viii. Unreasonable Location: If the arbitration agreement required all arbitration proceedings to be conducted on an island in the middle of the Pacific Ocean, it would likely have no effect.

ix. Limitations on Discovery Process: Sometimes an arbitration agreement provides something like “Each side can have only one witness, and the parties will share only 10 documents each.” An arbitration agreement like that one would likely be held void.

x. Unreasonably Short Time Periods, Especially to File a Claim: If the law provides that a claim of unpaid wages can be filed for six years, but an arbitration agreement says that such a claim must be filed within six days of non-payment, it would likely be found void.

Sonia, while I am not totally happy with the way Courts operate, I am especially unhappy with the way most arbitration systems work. To the extent an employee can get his or her claim heard in an open, public Court, and not in arbitration, I think it would – in many instances – be wise to do so. I suggest each employee who is faced with an arbitration agreement consider whether the above ten circumstances may be present, and to discuss with legal counsel whether the arbitration should be avoided using these reasons.

We have additional articles about arbitration on the Resource Center of our blogsite. You can find them by simply [clicking here.]

Thanks for writing in. Consider sharing with others our blogsite, our YouTube videos, and our Model Letters with which you can learn to navigate and negotiate for yourself at work.

Best,
Al Sklover

P.S.: Our Sales Affiliates make real income by recommending our Model Letters, Memos, Checklists and Agreements. You can, too. Just [click here.]

© 2011 Alan L. Sklover, All Rights Reserved.

“Can my former employer require me to resolve my claims against it by using their own ‘resolution program,’ instead of in court?”

Published on December 7th, 2010 by Alan L Sklover

Question: Hello, Alan, I am involved in a wrongful termination case with my ex-employer located in California.

I just found out they have a program called the “Resolve Program” which consists of four steps:  (1) first, an internal HR review of what happened; (2) second, if that doesn’t work, an internal appeal group to review what happened; (3) third, if that doesn’t work, an outside “mediation” which is a non-binding meeting with an independent person; and (4) fourth and finally, if that doesn’t work, an arbitration, which is a meeting with an independent person whose decision is final and binding.

This Resolve Program says that I must use this system to resolve all claims, even legal claims, and that I cannot file a lawsuit in a court. Supposedly, if I go to Court, the company’s attorneys can have the judge force me to go through the company’s Resolve Program.

I thought you can sue anyone you want, especially in a case like this. Is this legal?

     Rick
Los Angeles, California

Answer: Hello, Rick. It may surprise you, but (a) what you describe is entirely legal, and in fact, (b) what you describe is actually quite common, and becoming more common as time goes on. 

Your former employer’s Resolve Program is Legal, and Common. What your former employer calls its “Resolve Program” is an example of what is called “alternative dispute resolution.” It’s a system that your company has instituted to make sure that they stay out of court, away from a jury of your peers, and that their errors in the way they treat employees remain private. The four stages that your former employer’s “Resolve Program” includes, are actually quite common, too. In my experience, this is a growing trend.

Many years ago people and businesses started agreeing to resolve their differences using privately-hired arbitrators, bypassing the courts. The idea then – although it has changed dramatically since – was that such “private justice” programs were faster and cheaper. Over time, the courts have come to support these “private justice” mechanisms, as they reduce the number of cases in the courts. The number one requirement for a court to accept such “private justice” measures is that you previously agreed to limit your future conduct in this way. If you did not sign an agreement by which you agreed to use this “Resolve Program” instead of going to court, then you do not have to use it, but are free to go to court.

However, such an “alternative dispute resolution” program must afford basic fairness. Every state I know of – including California – will enforce such required resolution programs provided (a) you agreed to it in the past, and (b) it contains basic fairness in the way it is carried out. You should understand that the first three of the four steps in your employer’s Resolve Program are not final and binding on either the employer or the employee; just the final step – arbitration – is a final and binding procedure.

These are the elements of basic fairness that courts look for in deciding if a required arbitration procedure is sufficiently fair:  (1) a neutral arbitrator; (2) the right to conduct “discovery” (which means finding out facts before the hearing or trial); (3) a requirement that the arbitrator give some reasoning for his or her decision; (4) that both employer and employee are required to use the process; (5) the arbitrator being permitted to render any award that a court could render; and (6) the procedure will not cost the parties an exorbitant amount of money, more than would a court case.

I am not a fan of arbitration mechanisms for two basic reasons: first, I find arbitrators almost always favor large companies over individual employees, and second, it is now almost always more expensive to arbitrate than it is to go to court. If you would like to read my views on the subject, [click here].

Ask to see a copy of any agreement you signed requiring this “ADR.” So, step one: if you don’t recall signing an agreement that limits you to the Resolve Program instead of going to court, request a copy of the agreement you allegedly signed; if they can’t provide it to you, then they can’t provide it to a judge, and so you are free to go to court.

If you agreed to this Resolve Program, ask for a copy of its rules, procedures and deadlines. If you did sign such an agreement requiring all disputes to be resolved under the Resolve Program, ask to see all of the rules and procedures of the Resolve Program. Make sure you don’t miss any deadlines and that you use any required procedures and forms. 

Hope this is helpful. If it is, I would love to hear from you in a few weeks to hear (a) what you decided to do, (b) what you did, and (c) how you’ve done. We are beginning a new feature called “Walking Taller at Work” which shares with readers the experiences of those, like you, who write in. 

          Best, Al Sklover   

© 2010 Alan L. Sklover, All Rights Reserved.

Making Arbitration Work for You, Not Against You – “Sklover’s Arbitration Rules”

Published on September 2nd, 2010 by Alan L Sklover

“False scales are an abomination to the Lord.
But a just weight is His delight.”

– Old Testament, Proverbs 11:1

ACTUAL CASE HISTORY*: Jasmine, 42, a senior executive at a major fragrance company had a clear written employment contract that guaranteed her – unconditionally – a minimum annual cash bonus of $120,000. When her employer was three weeks late in paying her, she submitted a polite email inquiry to HR, asking when the bonus would be paid. The response was simple, and surprising: “Because business was not good, the company has decided that, regardless of contractual obligations, no bonuses will be paid this year.” Soon after Jasmine found a new position with a different employer, and consulted our firm about how she could collect the $120,000 bonus due her.

Jasmine’s employment contract provided that “Any and all disputes will be resolved by binding arbitration under the auspices of the American Arbitration Association (called the ‘AAA.’)” Jasmine was happy, because she heard that arbitration was faster, easier, less formal and less expensive than the usual court-litigation process. We were not so happy, because from our experience with arbitrations in recent years, and especially with arbitrations using the American Arbitration Association, we knew that arbitration has increasingly become slower, more difficult, often more formal and always more expensive than the usual court-litigation process.

Sadly, it turned out we were right. The arbitrator appointed by the AAA considered herself an expert arbitrator, and told us so every few minutes. Her schedule was very busy – as was apparently her personal life – so it often took months to get her to answer requests. She was quite a stickler for detail: Her own “rules” required all communications to be in writing, sent a certain way, using a certain font and font size, and specified margins. Worst of all, she announced early on that, in order to review the two sides’ submitted materials, she needed to first be paid for “study time” of $50,000, half from each side. She also mentioned that the Hearing could not take place for at least 18 months, and that it would require additional fees of $20,000 from each side. That did not include her fees for the time at a Hearing, or her fees for what she called “post-Hearing” consideration of the record.

We inquired with the AAA whether anything could be done to rein in what seemed like abusive behavior of several kinds. “No,” we were told, “AAA arbitrators are free to set ground rules.” At the conclusion, Jasmine won her $120,000, but it cost her $30,000 in legal fees and $75,000 in arbitrator fees, and it took almost three years.  End result: it was a bad, difficult, drawn-out, negative and very expensive experience for all concerned. Except the Arbitrator; she seemed to enjoy every minute.

LESSON TO LEARN: For many years, arbitration was seen as a less formal, more efficient, less expensive and faster way to resolve disputes. And, for many years, it was those things. Essentially, you submitted a written Statement of Claim, the other side submitted an Answer, and then you met with a person – often a retired judge –  and hashed out your differences. A week or two later, the retired judge rendered his or her decision, and the parties honored it. That sure seemed good. Wow, things sure have changed over time.

Increasingly – and especially if the American Arbitration Association was used – arbitration became more difficult, much more expensive, less efficient, and slower than court litigation. Arbitrators now often seem to stretch out the case to make more money; Judges in court do the opposite: try to move cases along quickly. Now arbitrators often require more formality than Court Judges do. Now arbitrations almost always cost much more than does court litigation, and even last years – or as long as the arbitrators want them to, because the longer the arbitration, the more the parties have to pay the arbitrators. Clients are not happy, lawyers are not happy. Only arbitrators seem to like the present system.

But here is the key: If you take control of the process – and you can – you can use the old ease, informality, brevity and inexpensive nature of arbitration to enhance your interests, not the interests of the arbitrator or the arbitration company.

How do you do that? You do so by making the “arbitration rules” yourself, and insisting that the arbitrator follow them; otherwise you will take your “business” elsewhere. You can do that by insisting on inserting what we affectionately call “Sklover’s Arbitration Rules” into (a) every employment-related document and agreement you sign, and (b) if there isn’t any employment-related agreement, then suggesting to your “partner-in-dispute” that using Sklover’s Arbitration Rules when commencing an arbitration is surely in both of your interests.

The key to doing so is to control the process so that, no matter who “wins” or “loses,” at least it will not end up making both “partners-in-dispute” miserable, frustrated and poor, while making the arbitrator happy, comfortable and rich.  It is not certain that your “partner in dispute” will agree to such a process, but you can only make it more probable if you can illustrate the many advantages they will enjoy. In recent years, we have found that more and more attorneys for both employees and employers find our “Sklover’s Arbitration Rules” to be fair, smart and effective in reaching a conclusion to disputes – which is in everyone’s interests. Well, not “everyone.”

WHAT YOU CAN DO: Here are what we call “Sklover’s Arbitration Rules” we recommend you request these either be inserted into every employment-related document you sign, or be used as a separate agreement to control every employment–related dispute resolution process you engage in. Of course, they can be modified as the parties may decide is more suitable to them, their circumstances, and their interests:

Read the rest of this blog post »

Mediation of Workplace Disputes: “What’s It All About?”

Published on August 23rd, 2007 by Alan L Sklover

“Better a lean agreement than a fat lawsuit.”
– Yiddish Proverb

ACTUAL CASE HISTORY: It happens nearly every week. Last week it happened three times: one of our clients was invited – or required – to participate in “mediation” of a workplace dispute. And whenever that happens, it is inevitable that we are soon to be asked, “What is mediation all about?”

Sharon , 48, was a television-commercial producer for a leading advertising agency. She’d been with the firm for almost 18 years. For the last 7 years, she had been the lead producer for many commercials produced for a major client of the firm in the food products industry. The client loved working with Sharon , and the feeling was mutual. When a Senior Producer/Vice President position opened up, Sharon made a formal bid for promotion. Surprisingly, she was denied the promotion, and it was given to a younger woman, aged 32, with far less experience. Sharon was concerned that her age might have been the reason. She asked us what she should do.

We learned that Sharon’s employer was among an increasing number of employers that have a formal process that employees must use to resolve workplace disputes. In Sharon’s case, her employer’s Employee Handbook contained a section entitled “Dispute Resolution,” and in that section all employees were notified that, if they felt they had been treated wrongly, illegally or unfairly, they had to follow a three-step process: (a) first, they had to send a written note to Human Resources in which the dispute was described; (b) if that didn’t resolve things within thirty (30) days, employees had to participate in “mediation,” and (c) if that didn’t resolve things within sixty (60) additional days, only then (d) could employees sue in court.

Sharon did send a written note to HR describing her failure to be promoted, and the promotion of someone with far less qualifications, and without significant client support. In two weeks HR responded: the failure to promote Sharon was not, in its opinion, anything improper; in their words, “these things just happen.” Suffice it to say, Sharon did not find that to be a “resolution.” She then came to us to help with her mediation.

As required by the mediator, we prepared a five-page “mediation statement” describing Sharon’s complaint, her resultant damages, and her goals: (a) she wanted the promotion; (b) if she couldn’t get that, she wanted: (1) the raise she would have received had she been promoted; (2) a promise in writing to consider her for the next promotion; (3) an apology; (4) a letter confirming that she would not be retaliated against for raising this complaint; and (5) her legal fees reimbursed. Because the employer’s attorney told the mediator that she didn’t want us to see her mediation statement, we told the mediator that we wanted ours kept confidential, as well.

Three weeks later, we met with Sharon, the mediator, her employer’s HR representative, and her employer’s attorneys. First we all met together, then the HR representative and the employer’s legal counsel moved to another room. The mediator, a retired judge, engaged in a kind of “shuttle diplomacy,” moving from room to room and back again, both empathizing and trying to get us to sympathize, or at least understand, the employer’s viewpoint. No doubt, the retired judge was doing the same thing with them. At 1:00 pm , we took a 45-minute break for lunch, all together.

Over seven hours, we discussed, debated and sometimes heatedly argued the relative merits of Sharon’s “case,” and the relative advantages and disadvantages to both the employee and employer of resolving things that very day, as contrasted with being in court over the next year or two. We were surprised to hear that some of Sharon’s colleagues had voiced complaints about her, that she was seemingly “too forthcoming, too honest” with the clients, at times, it appeared, to the agency’s detriment. Little by little, small step by small step, ever-so-slightly, both sides agreed to compromise. At the end of the day, Sharon did not get her promotion, but got (i) four of her five requests, plus they agreed (ii) to move her to a more advantageous office, and (iii) permit her to work from home one day per week. HR refused to provide any “apology,” claiming that would be an admission of wrongdoing, which they steadfastly denied.

As I had hoped, both sides left a bit unhappy, but happy enough to be pleased with the result; that is, in actuality, the “goal” of a mediation. Best of all, we avoided the uncertainties, the cost, the disruption and the public “airing of laundry.”

LESSON TO LEARN: Mediation is becoming more and more common for one reason: it often works to resolve disputes without the substantial disadvantages of the litigation process. Overall, many people who have used the mediation process are pleased that they did so, especially employees, who have far less resources for a litigation than their employers do. As we explained to Sharon:

(a) Increasingly common: Mediation is becoming increasingly common, as more and more employers are using it. Many courts require that parties in litigation try to “mediate” their dispute before the Court will hear it. More state and federal administrative agencies, such as the federal Equal Employment Opportunity Commission (“EEOC”), are encouraging use of the mediation process, too.

(b) Entirely voluntary: Mediation is an entirely “voluntary” process, every single aspect of it. No one can “force” you to “mediate,” although it can be a required step in a larger resolution process. If you don’t like it, you can decline it. If you don’t like the way things are going in a mediation, you can simply stand up and walk out; my clients and I have done that many times, without any penalty. One thing you know: if a party wants to mediate a dispute, that party probably wants to settle it, quickly and confidentially.

(c) Common ground sought: The idea of mediation is simple: if two “sides” are both willing to engage in at least some compromise, with the help of a skilled mediator they might be able to find an acceptable “common ground” for settlement that they could not accomplish without a neutral third party.

(d) Mediators are a new kind of professional: Though many are retired judges or former lawyers, a mediator can have any training or background. Ideally, they have no interests with either side, no relations with either side, and are truly independent, honest and desirous of a fair process and end-product. (That being said, you can expect a certain desire by mediators to please the large companies and the large law firms, who provide them with most of their business income; it’s only natural.)

(e) The mediation process: While mediations can take any format, by far the most common format is this:

1. The parties are usually asked to sign an agreement with the mediator that says everything said in mediation will be held confidential, and provides for which side(s) will be paying the mediator fees. (In workplace mediations, the employer usually pays for all of the mediator’s fees, but does not often contribute to the fees of the employee’s attorney.)

2. The mediator usually asks the parties to prepare a confidential mediation statement that outlines their cases (or defenses), their support for their cases, and their goals. If both sides agree to exchange their mediation statements, they do; if either decides against that, neither side does so.

3. Both sides, their attorneys, and the mediator meet together in one room. Both sides are given an opportunity to make a statement in the presence of all parties. It is often a cathartic event for the employee, the first time they’ve had the opportunity to confront a representative of their employer, and “open up.”

4. One side will then move to another room for the rest of the day.

5. The mediator plays a game of “shuttle diplomacy,” emphasizing to each side the problems with their arguments, the strengths of the other side’s arguments, and the difficulties to be faced if mediation is not successful, and litigation ensues.

6. If the parties do not resolve their differences by the end of the day, the mediator commonly makes one last “stab” at a proposed compromise settlement. Some mediators will suggest going until resolution takes place; I’ve spent until 2:00 am mediating on more than one occasion. A good mediator will be eternally persistent, until a resolution is achieved, perhaps trying the next day, the next week, or even the next month to move things toward resolution.

7. If the parties achieve resolution, a settlement agreement will be drafted, and signed, right there and then, before either side leaves, because “untied knots tend to unravel.”

(f) Advantages: There are several advantages to mediation:

1. By its very nature, mediation helps both sides understand the other’s viewpoint.

2. The entire matter can be resolved in a single day.

3. As a result, there can be a significant savings in legal fees for both sides.

4. As a result, there can be far less disruption to the lives of both sides.

5. Most mediations are confidential; thus there is far less reputational risk for both sides.

6. Successful mediations end with a written agreement; thus they cannot be appealed from.

7. People find the mediation process – in which you speak up for yourself – to be cathartic.

(g) Disadvantages: There are disadvantages to engaging in a mediation, but they are few:

1. Any time you spend with your attorney may cost you money.

2. You may have to share in the fees of the mediator, which are usually between $600 to $1,000 for a day.

3. During your mediation, the other side may learn facts about your “case” you’d rather they not know, if you’re not careful.

4. In rare cases, things said in mediations can exacerbate any bad feelings the parties may have.

WHAT YOU CAN DO: If you have the opportunity to resolve a workplace dispute, consider trying it. In doing so, however, there are some things you’d be wise to do:

1. Don’t ignore legal deadlines for filing court or administrative complaints: Don’t believe that, since you are trying to resolve things amicably that your employer will “forgive” you if you fail to meet official deadlines for filing either court or administrative complaints. Go ahead and file if it’s necessary to meet an official deadline; you can always later agree to withdraw a filed complaint.

2. An employer’s agreement to mediate is a good sign; push further: We almost always see an employer’s agreement to mediate as a sign they want to settle. First, insist that they pay for the mediator’s fees, whether or not the case later settles. Next, ask that your employer agree to a base offer, that is, a minimum amount they will agree to pay; they may ask you to agree to a limit on the upside of what you’ll ask for. Such “high-low” agreements, by limiting the chasm between the parties, almost always lead to resolution. Third, ask that your employer agree to pay at least part of your legal fees. Perhaps as part of the later settlement. Don’t have high expectations on this point, but there’s nothing to lose in asking.

For your Mediation or Arbitration, always ask for a copy of our Model Letter Requesting a Copy of Your HR File. It shows you “What to Say and How to Say It”™ just [click here.] Delivered Instantly By Email to Your Printer.

3. Don’t try to convince the mediator you’re right but, instead, that you’re determined: A mediator is not a judge or a jury; a mediator has no right to choose a winner, or any power to force a settlement. He or she may believe you’re right in what you say, but that is of no consequence. If he or she truly believes that you are prepared to go to court, then he or she may convince the other side of that, and that is all that really counts. Thus, “strength of resolve” is often more powerful in mediation than “strength of case.”

4. Likewise, don’t try to convince the mediator you are a “nice person”: Being liked by the mediator is a nice thing, but it won’t help you in the mediation. If anything, I suggest it might hurt you, especially if the mediator is afraid of your employer’s representative, and thus sees you as the person she can cajole.

Perhaps the problem is Age Discrimination? We offer a “Model Letter Submitting Your Complaint of Illegal Gender Discrimination. To obtain a copy of one of these useful model letters, just [click here.] Delivered by Email – Instantly!

5. Don’t let your guard down: If you have a secret witness, a strategy unexpected by your employer, or other information that is especially valuable to your case, don’t offer it up in mediation to the mediator or the other side unless truly necessary.

6. Try to get an especially good night sleep the night before: Not only can a mediation be an exhausting day, but it might well last into the night. I have prevailed at many mediations because I have the ability to ignore exhaustion. If, at 10 pm you are raring to continue, and they can’t see straight, you will in all probability prevail.

7. Don’t be surprised if the mediator disappears for an hour, or even two, at one time: It is not uncommon for a mediator to stay with one side for a long time, to try to “bond” with them, to test them, to convince them of their sincerity. I’ve heard from mediators I know that this is sometimes also a tactic: they might even go out for a walk for an hour to make both sides concerned about “what is taking so long?” While I have never been able to concentrate on other matters during a mediation, there’s nothing wrong with bringing a paper, magazine or busy work with you to avoid the jitters and keep your mind busy.

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8. Expect the early discussions to move very slowly: Our experience is that, early on, neither the employee nor the employer wants to move much off their initial positions, and that early movement toward resolution is quite slow. If that happens to you, don’t get discouraged. Bear in mind that, faced with real deadlines (such as “I have to go and feed my children at 6:00 pm”), later movements in offers and counteroffers seem to go a lot faster. We strongly encourage continual improvements in offers and counteroffers, no matter how small, for movement toward resolution is always better than no movement at all. Remember that, so long as both sides remain in the building, there’s hope for a resolution.

9. Consider using “I will if they will”: This is a handy device to encourage movement toward resolution. Suppose no one has moved much, and you want to get some momentum going again. Consider saying, “I will lower my demand $20,000 if they will simultaneously increase their offer $20,000;” that way, no one “moves” first, and the movement toward resolution seems in equal steps, thus fairer. It’s a useful tool for your “mediation toolbox.”

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10. If chances for success seem bleak, suggest “The Mediator’s Opinion”: If you’re at impasse, and things seem bleak, consider using “The Mediator’s Opinion.” This device is precisely what it sounds like: ask both sides to commit to listen carefully to what the mediator believes to be a fair, reasonable settlement, and the reasons he or she thinks so. If the mediator has established credibility with both sides, this sometimes can be the right tool for the job.

11. Bring with you a list of terms for the final settlement agreement: You should expect the other side to bring with them a settlement agreement, to be used in the event a settlement is reached. You should also expect that the settlement agreement they bring with them will favor their interests, and leave you unprotected. The items on your list of “necessary settlement agreement terms” should include:

a. Payment will be paid (or other steps taken) no later than [insert date.]

b. If payment is not made (or other steps taken) on time, the settlement is automatically null and void; that is, the settlement is conditioned on prompt payment (or other steps taken.)

c. You will not be required to take any further steps or provide any efforts in the future.

d. If your goals include a recommendation letter or apology, write down exactly what you want, and bring it with you; make it an exhibit.

e. Any release to be signed should be limited to this case, and not be a “general release” unless you are certain – absolutely – that no other obligations to you remain unfulfilled.

f. Every person or entity you release will release you to the same extent you release them.

g. If you have already instituted a law suit or arbitration, it will not be withdrawn until your check(s) clears.

h. If you have not brought a lawyer with you, then the settlement agreement must be conditioned on approval of your lawyer (within seven or ten days.)

i. Every page and exhibit must be initialed by both sides.

12. Keep perspective: this is a useful exercise, not a “make-or-break” contest: Some people get very emotional in mediations, because they see it as a kind of contest of wills; it is not. Instead, mediation is a useful exercise that can, if done right, get you what you want: reasonable resolution without the harmful side effects of litigation. Emotionality won’t get you that; smart mediation will.

You should expect that, at some time in the future, you will be asked to mediate a dispute, whether or not related to your employment. Consider it an opportunity to get a fair measure of fair treatment, without having to go to court. But be smart in how you handle your mediation.

SkloverWorkingWisdom™ emphasizes smart negotiating – and navigating – for yourself at work. If you feel you’ve been shortchanged or treated improperly, whether it regards a bonus, promotion, discriminatory treatment, or otherwise, don’t be afraid to move forward with a complaint and efforts to resolve it. There’s problems in every aspect of life. Intelligence in resolving them may make or break your career. Gaining maximum rewards without unnecessary risks is what business is all about. But it takes more than luck to make that happen. It takes forethought, care and prudence, the essential ingredients in good negotiating.

Always be proactive. Always be creative. Always be persistent. Always be aware. And always do what you can to achieve for yourself, your family, and your career. Take all available steps to increase and secure employment “rewards” and eliminate or reduce employment “risks.” That’s what SkloverWorkingWisdom™ is all about.

P.S.: Want to learn more of this “good stuff” regularly? You can Receive Each of Our Blog Posts Automatically, Free, By Email if you just [click here.] And we promise: we never sell, lease or let anyone see our subscriber list. Never, ever. 

A note about our Actual Case Histories: In order to preserve client confidences, and protect client identities, we alter certain facts, including the name, age, gender, position, date, geographical location, and industry of our clients. The essential facts, the point illustrated and the lesson to be learned, remain actual.

Please Note: This Newsletter is not legal advice, but only an effort to provide generalized information about important topics related to employment and the law. Legal advice can only be rendered after formal retention of counsel, and must take into account the facts and circumstances of a particular case. Those in need of legal advice, counsel or representation should retain competent legal counsel licensed to practice law in their locale.


Alan L. Sklover

Alan L. Sklover

Employment Attorney
and Career Strategist
for over 35 years

Job Security and Career Success now depend on knowing how to navigate and negotiate to gain the most for your skills, time and efforts. Learn the trade secrets and 'uncommon common sense' of Attorney Alan L. Sklover, the leading authority on "Negotiating for Yourself at Work™".

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