Category: Alternative Dispute Resolution
When clients are facing difficult financial conditions, attorneys should help them conduct a cost-benefit analysis of whether to continue to litigate. According to a recent study by DecisionSet, a consulting firm that advises clients on litigation decisions (New York Times 8/8/2008), it only made economic sense to go to trial in 15% of the cases. Mediation, a dispute resolution process conducted by a neutral third party, results in successful settlement in generally 80% of litigated matters. With the volatility in the stock market, and bleak economic conditions faced by many businesses, lawyers and clients should seriously consider use of mediation to resolve disputes without litigation.
The current cast of negotiators involved in the Middle East conflict provides archetypes that can be instructive when considering the appropriate players to send to a mediation of an employment dispute. For example, should you send someone to the table like President Bush who is known for his resolute, confident, almost theological certainty of positions on issues? Or someone like Former Prime Minister Tony Blair, a subject matter expert and an artful conversationalist, whose appointment as Special Envoy signals the significance of the Western powers’ desire for peace in the region. Then there is Palestinian President Abbas who desires peace but seems to lack authority from his constituents. One might also consider the model of Israeli Foreign Minister Tzipi Livni, a staunch Zionist who sees claims to land rooted in a biblical Jewish heritage, but nevertheless recognizes that to resolve conflict, “What we have to decide about is not history but the future.” The New York Times Magazine (7/8/07 at 70). Thus, when choosing who will represent your side at the bargaining table, examine closely his or her familiarity with the nature of the dispute, the scope and nature of his or her authority, the spokesperson’s ability to see all sides of an issue, and whether he or she can leave behind the past for the sake of a more certain future.
What can employment lawyers learn about prevention and resolution of employee disputes from the Don Imus story?
* The rules of engagement have changed . . . if an employer doesn’t have a policy against discrimination, publish one now;
* All employees, from the top of the org chart to the bottom, but particularly the top, must be trained to know what the rules say, how they will be enforced, and what each employee’s responsibility is to enforce them;
* When it comes to discrimination, some infractions will not be subject to progressive discipline;
* Speed and decisiveness sends a clear message that all employees and customers can understand.
As succinctly summarized by DiversityInc.com (April 12, 2007): Racial incidents are no longer a side issue for companies like this. What these companies do and how they’re perceived affect everything, including employee morale and retention. It’s really hard to be proud of a company that exhibits no moral fiber, and in our “YouTube” society, you have a “New York minute” to make the right choice.
Some of the nation’s most experienced arbitrators recently conducted the Third Annual ABA Section of Dispute Resolution Arbitration Training Institute in New York. The arbitrators stressed that one of the most important phases of arbitration takes place well-before the hearings themselves: the initial pre-hearing planning conference. In that initial call or conference with the arbitrators, advocates should be prepared to address arbitrability, discovery, including e-discovery, substantive motions, the potential length of the hearing, attendance of witnesses, submission of briefs, and even whether the parties will prefer a brief or detailed award. As the courts continue to defer to arbitration, counsel should play an active role in streamlining the process and resist the tendency to make arbitration as complicated, expensive, and drawn out as litigation.
Don’t be reluctant to propose mediation for fear that it is a sign of weakness. The consensus of the litigators and neutrals who attended the New York State Bar Association Committee on ADR program, “Winning Through Mediation: Know When to Hold ‘Em and Know When to Fold ‘Em,” is that it is always prudent to propose mediation and should not be viewed as a sign of weakness. Attorneys can propose mediation to their adversary even before a case is filed or in the early stages of litigation by using these strategies: state that it is your “practice in every case” to discuss mediation before the case gets too deeply into litigation; include an offer to mediate in a demand letter or position statement; ask the judge or law clerk to recommend mediation. Empirical research suggests that those making the first offer to negotiate may even strengthen their bargaining position by appearing to negotiate from a position of power and confidence.