Association for Conflict Resolution

A 1979 graduate of Rutgers Law School, Michelle passed the New Jersey bar in 1980. She privately practiced law several years and later became employed by the NJ Judiciary, where she has since worked for over 22 years. While a private attorney, she met Tom Farrell, in his then capacity as a court mediator in municipal court. Through his example, Tom inspired her to go to work for the Judiciary in a position which involved expansion of court based alternative dispute resolution.

Michelle currently oversees the Civil Mediation program and has trained all mediators serving in the Foreclosure Mediation Program.

ASAP

Please communicate your entrée orders of chicken parmesan, sirloin steak or vegetarian

Dues Members - $40 (including dues)

Non-Members - $25

Dues only $20

Freddy’s Tavern

12 Railroad Ave., Ewing, NJ, 08618

609.882.9845

We accept reservations up to November 9, 2009.

TO RESERVE, call Don Dileo (609-585-0554), Michele Liebtag (609-530-0060). Lisa Ciccone (732- 247-0350) or Shoba (609-292-8471)

E-mail: ddileo@organize.afscme.org , mleibtag@cwa1034.org, or afinkle221@verizon.net

Thoughts from Tarzana- 10/10/2009

Making Settlements Last

By Alec Wisner - October 5, 2009

A settlement is meaningless if it the parties don't respect it. Parties who don't respect settlements simply see breach as another cost of doing business, accepting further litigation if they see the overall result to be profitable. An all too common example may occur when a large small vendor is owed money by a large retailer. In a typical scenario, the vendor needs prompt payment to remain healthy and a continuous flow of sales and payments to remain in business. Knowing this, the vendor may choose to "stretch" payments as far out in time as possible, until forced to the bargaining table by a desperate vendor. If the retailer is sufficiently unscrupulous, it may make a small payment at that time and agree to make monthly payments, but insist that in exchange for the monthly payments, the vendor must allow the amount of credit to remain as is. The vendor, back against the wall, often feels that it has no choice but to accept. The agreement in place, the retailer then orders as much product as possible from the vendor over the next few months while making the minimum agreed payments, then never pays another dime. The upshot is that the retailer finds another vendor immediately, and the original vendor can either quietly go out of business or try to finance a lawsuit and deal with the inevitable stalling tactics that will follow. Welcome to the exciting world of business litigation!

These sorts of cases are very tough to mediate for several reasons. First, the playing field is hugely unbalanced; here, the retailer has all the economic strength. Second, the vendor will typically not be aware of the problem until it is

likely too late. Third, the retailer clearly does not value a continuing relationship. And fourth, and most importantly, the retailer is not bargaining in good faith.

I use this example to segue into an area where the landscape is very different: divorce mediation. In California, where I practice, divorce is a matter of right. A spouse cannot successfully contest a Petition for Dissolution. There are three general ways in which divorce is accomplished: (1) through negotiation, whether by mediation or collaborative law; (2) through adversarial negotiation and settlement between attorneys; and (3) by court trial. Let's discuss the issue of spousal support in light of each of these.

Consider a case in which the husband makes a good living and the wife has limited earning capacity in a marriage in excess of twenty years in which there are young children. In a case like this, it would be fair to assume that child support is automatic and that spousal support is highly likely with a long duration, possibly even lifetime.

In a trial setting, a judge will order the support amounts and duration. It is not surprising that many husbands feel "jobbed." They feel that the judge (especially if the judge is a woman) is unfairly biased towards wives, or that their attorney did a poor job, or that the bad weather that day had something to do with it. Bottom line: the husband feels that he's being bled dry. Given the customary awards here in Los Angeles, if his attorney hasn't done a good job of educating his client, the husband is in for a rude awakening. All of this sets the stage for the stereotypical husband who does everything he can to avoid paying the alimony. Unfortunately, the line between the spousal and the child support is too often blurred and the entire matter devolves into a lifetime of orders to show cause, contempt hearings, even jail time, and two very affluent attorneys.

An adversarial settlement is somewhat better, since the husband and wife must agree to the terms of the contract. But even in these cases, there's a lot of pressure on them to agree. For one thing, the soaring costs of litigating divorce may have placed them in a position of financial exhaustion, where they feel compelled to settle so that there's something left to divide. And at the same time, each attorney, if he/she is doing his/her job, is putting pressure on their client, through hard reality checks, to accept terms that are anathema to them. While there may be a greater personal investment by the parties in this settlement, there is still a pretty high rate of husbands in the case I've outlined who walk out with steam coming out of their ears, itching to get even.

Finally, we have the mediated settlement. In a mediated settlement, both sides are required to be transparent; all information regarding the marital estate must be provided for the mediator to be able to work with the couple. In addition, part of the mediator's job is to see that the playing field is balanced. The mediator will also ensure that before either party agrees to anything, that party is fully informed of all possibilities and makes the wisest decision in light of the entire picture. In this way, if a party makes a concession, that party will understand why the concession is necessary and what will be gained in return for that concession. Every step of the way, the mediator will empower the parties to make their own decisions and to really agree on how they are going to terminate their marriage. Studies have shown that people who mediate their divorce are far more likely to respect the terms of an agreement that they crafted themselves, albeit with the assistance of a professional.

The lesson to be taken from this is: when parties can invest in the creation of an agreement, they are far more likely to honor that agreement and the settlement made by that agreement is far more likely to endure.

http://mail.google.com/mail/h/1ep327n1d64iv/?v=c&th=124470da0892ca86

ADA Amendments Act Regulations

IPMA-HR and several other public sector organizations are considering the impact of the proposed ADA Amendments Act regulations on public employers. The expansion of the Americans with Disabilities Act passed in 2008 and became effective in January 2009. Many more employees will meet the definition of “disabled” under the new law, requiring employers to engage in the interactive process and make accommodations when appropriate.

The Equal Employment Opportunity Commission (EEOC) issued proposed regulations on September 23, 2009, with comments due by November 23, 2009. The proposed regulations implement the law and also make several changes. For instance, the EEOC changed the definition of “work” in the proposed regulations.

According to the EEOC Web site, the concept of a “type of work” replaces the concepts of a “class” or “broad range” of jobs from the 1991 ADA regulation. A type of work may include jobs such as commercial truck driving (i.e., driving those types of trucks specifically regulated by the U.S. Department of Transportation as commercial motor vehicles), assembly line jobs, food service jobs, clerical jobs, or law enforcement jobs. A type of work may also be determined by reference to job-related requirements, such as: jobs requiring repetitive bending, reaching or manual tasks; jobs requiring frequent or heavy lifting; and jobs requiring prolonged sitting or standing.

Changing the language means that prior court decisions relying on “class” or “broad range” of jobs may not be applicable. This could lead to additional litigation and may require employers to accommodate more individuals than in the past.

The ADAAA also expands the definition of a disability by including non-exhaustive lists of major life activities and major bodily functions. The EEOC identifies the following as examples of impairments that consistently will meet the definition of “disability”: deafness, blindness, intellectual disability (formerly known as mental retardation), partially or completely missing limbs, mobility impairments requiring use of a wheelchair (a mitigating measure), autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia.

By creating lists of conditions that will consistently be considered disabilities, employers must be aware that even if there is no obvious limitation requiring an accommodation, they must still engage in the interactive process.

Workforce and Succession Planning Benchmarking Survey: Getting More Attention
Workforce and succession planning in the public sector is still uncommon but compared to the results of the 2004 survey, the practice appears to be trending upwards. Twenty-two percent of respondents reported engaging in workforce planning and 32 percent said they have succession plans. Eighty-eight percent of those with workforce plans said they combine the practice with strategic planning; other types of planning commonly combined with workforce planning are budget, HR and strategic staffing.

EEOC Proposes ADAAA Regulations
On September 23 the Equal Employment Opportunity Commission (EEOC) published proposed regulations implementing the Americans with Disabilities Act Amendments Act which was passed in September 2008. Comments on the regulations will be accepted until November 23, 2009.

Economic Downturn Leading to Decline in Employee Commitment, Morale, Watson Wyatt and WorldatWork Survey Finds
SCOTTSDALE, Ariz. – The cost-cutting actions that employers have been making to deal with the economic crisis have caused a sharp decline in the morale and commitment of their workers, especially top performers, according to an annual survey by Watson Wyatt, a leading global consulting firm, and WorldatWork, an international association of human resource professionals.

More Than One-Third of Employees are Teleworking, New CEA Study Finds
Nearly two in five employed U.S. online adults work from home at least one day a month, according to new research from the Consumer Electronics Association (CEA). The Telework and the Technologies Enabling Work Outside Corporate Walls study also shows that most teleworkers plan to spend at least $925 over the next year on technology products to help them work from home.

GAO Issues Report on Sexual Orientation & Gender Identity Discrimination
On October 1, the U.S. Government Accountability Office (GAO) issued a report on sexual orientation and gender identity discrimination in the states. The report concluded that relatively few sexual orientation and gender identity complaints are filed in the states that have laws prohibiting discrimination on those bases

Debt Levels Increase for Those In or Near Retirement
WASHINGTON – Debt levels of those in or near retirement age are heading up: Among elderly families—and especially among the lower-income elderly—housing debt in particular is rising, according to a study published by the nonpartisan Employee Benefit Research Institute (EBRI). For some age groups, a significant percentage has debt levels beyond the threshold considered problematic. Click here to read the rest of this article.

Not so ‘Nice’

‘Nice’ is as ineffective as ‘confrontational’ and maybe worse.

Colleen and seven other women invested a few thousand dollars and a week of their time to participate in a ’spiritual’ retreat. The goal was to renew their spiritual lives and form an ongoing monthly support group when they returned home.

The group dissolved within four months. Why? I believe it was because they were too ‘nice.’

One woman, Ruth brought her children (ages 3 & 5) to the monthly support meetings. The children were alive with enthusiasm and easily brought to tears if things didn’t go their way. This was a major distraction from the intention of the group: spiritual renewal and support.

Colleen shared with me nobody wanted to ‘confront’ Ruth so they just quietly dissolved the group. Colleen was very disappointed.

Being ‘nice’ - didn’t get any of them what they wanted. ‘Nice’ usually involves an unspoken lie.

The goal is not to be nice; the goal is to be sincere. Sincerity is honesty tempered with kindness.

There were other options other than ‘nice’ and ‘confrontational’ to resolve this and get what they wanted and with grace!

Applying Spiral Impact concepts, a few options:

Stating the truth with love or from ‘center’, such as: “I value the time we are together and the interruptions make it difficult to focus and connect. Can we agree to have this an adults only day? Or, find a different place for the kids?” Perhaps the group could help her find an alternative for her children. Note: love or from ‘center’ is the operative word here…if these are not present it will not work.

Revisiting the intention of the meeting and ask if the format is working for people. Hopefully, this was done initially.

Creating a group credo based on value questions during the week long retreat. See Spiral Impact, page 82.

None of these options are confrontational. Yet, anyone of them would have produced a more honest growth filled experience. What suggestions do you have?

http://www.karenvalencic.com/blog/not-so-nice/

ADR Professionals Listing

Name

Address

Phone #

E-mail

Jakob Dombroff

814 Park Ave

Elizabeth, NJ 07208

dombroff10@yahoo.com

Farrell, Thomas N.

4 Morningside Dr

Trenton, NJ 8618

609-984-2337

thomas.farrell@judiciary.state.nj.us

Finkle, Arthur

209 Shady Brook Dr,

Langhorne, PA 19047

609-292-9896

afinkle221@comcast.net

Williams, McKinley

222 S. Warren St

Trenton, NJ 08625

609-292-9267

mckinley.williams@dhs.state.nj.us,

It is important to understand the difference between a directory and a referral service. The following is a list of anger management providers and not a referral service. We do not in any way recommend or guarantee the quality of the services provided by any of the businesses listed.

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