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Investigators, who are competent, understand the issues involved, good interviewing skills, objective, neutral, effective as an interviewer, able to testify effectively and credibly.
Employers are seeking neutral and objective investigators as a result of recent case law. A proper investigation may shield an employer from liability or reduce its damages. Department of Social Services v. Superior Court (McGinnis) 31 Cal. 4th 1026, (2003) [Mitigation of Damages defense] and Faragher v. City of Boca Raton 524 U.S. 774 (1998) [Liability defense]. Those offering their services to employers are attorney/mediators who concentrate in the employment arena. However, by design or by accident, the investigation may conclude as a mediation which can cause conflicts and compromise neutrality of the investigator/mediator. What questions should the attorney/investigator/mediator be asking before wearing these various hats? What pitfalls lie in wearing multiple hats?
Is the Investigator/ Attorney/Mediator subject to the attorney/client or work product privilege? Should the attorney/client privilege and/or work product doctrine protect all or part of the Investigation?
Workplace Investigations in California can only be conducted by private investigators, attorneys or the employer in-house. If an employer hires an attorney/ mediator, is this protected by the attorney/client or work product privilege? This will depend upon the scope of retention and the purpose for which the employer will be using the investigation. If the employer will be conducting a McGinnis/Faragher investigation in anticipation of taking advantage of an affirmative defense, the investigation will be discoverable and therefore the employer will have waived the attorney/client privilege. Be careful if the employer, before the investigation begins, refuses to define its scope and the privileges attached to it. In this situation, the employer will define the privileges to best suit its own purposes which can cause the investigator, who may mediate the dispute, to become embroiled in multiple conflicts, as discussed below. The investigator/mediator will be unknowingly wearing many hats which will compromise neutrality and give rise to conflicts. No matter if you are wearing one hat or many, the scope of retention has to be defined in writing at the outset.
From investigator to mediator: Do the Investigator/Mediator’s conclusions, determinations of credibility and recommendations transform the investigation into a mediation?
The Recommending Investigator/mediator
If the investigator/mediator at the conclusion of the investigation makes recommendations, determines appropriate corrective action and attempts to resolve the dispute, is this taking the entire investigation into the realm of mediation? Can it be argued that by making recommendations, the investigator was wearing a mediator’s hat and therefore the statements and information are confidential? Recently, the California Supreme Court in Rojas confirmed that photographs, videotapes, witness statements and test data prepared for the purpose of, in the course of, or pursuant to mediation are protected from discovery or disclosure by California Evidence code sections 1119 and 1120. If the investigation was for the purpose to resolve the conflict, then none of the statements and investigation are discoverable. How can an investigator/mediator determine if the mediator’s confidentiality privilege applies? Does the employer want this confidentiality and did the investigator/mediator inform the employer of the potential confidentiality of the investigation? The zealous advocate would argue to their client’s advantage that the actions of the investigator/mediator were performed for the purpose of mediation, which gives rise to confidentiality. If the employee gave a statement that was damaging to his own case during the investigation, does that mean that the zealous advocate would argue that the statement is inadmissible at trial? Further, if the investigation is not favorable to the employer, will the employer argue that the investigation was a mediation and that no witness statements or documents are discoverable? If the employer cannot use the attorney/client privilege, will it attempt to use the mediation confidentiality privilege? Is the investigator/mediator compromising the true reason for an investigation by wearing two hats? Can an investigator/mediator protect against these conflicts before beginning any investigation?
The ‘Neutral’ Investigation Shifting to a Mediation.
Investigators/mediators feel that they have protected themselves from wearing the mediation hat by informing the employer that they will only interview witnesses, provide the witnesses’ statements and will not make recommendations or determine appropriate corrective action. By doing this a Chinese wall has been built between the role of an investigator and mediator. However, when an investigator just reports the facts and only the facts, does this amount to a meaningful investigation under McGinnis/Faragher? The main reason a third party is retained to interview witnesses is to assess credibility issues. All trial attorneys know that juries decide the cases based upon the credibility of the witnesses. If no credibility evaluations are set forth, is this truly an investigation that would allow an employer to make a decision to determine who is telling the truth and how to resolve the dispute? If an employer demands more than just reporting the facts, does this cause the employer to force the investigator/mediator into a mediator’s role? If so, do the lines become blurred as to whether it was an investigation or a mediation?
How can an investigator/mediator attempt to resolve conflicts and confidentiality issues?
Occupying a dual role as mediator and investigator becomes a dilemma especially in light of the Rojas decision. Where do the confidentiality issues kick in for the purpose of mediation, at the beginning of the investigation, at some other defined point in time during the investigation or at the mediation? Where does it begin and where does it end?
The California Alternative Dispute Resolution Rules of court provide some guidance when two different ADR processes are used. Civil Alternative Dispute Resolution Rule 1620.7 provides that a mediator must exercise caution in combining mediation with other ADR processes and may do so only with the informed consent of the parties and in a matter consistent with any applicable law. The mediator must inform the parties of the general nature of the different processes and the consequences of revealing information during anyone process that might be used for decision making in another process and must give the parties the opportunity to select another neutral for the subsequent process. If the parties consent to a combination of processes, the mediator must clearly inform the participants when the transition from one process to another is occurring.
An argument can be made that the workplace investigation performed by an investigator/mediator is akin to an ADR process because it is an attempt to resolve a workplace conflict. If it is another ADR process, then California has made it clear that there needs to be full and complete disclosure not only to the employer, but also to the employee. The mediator must inform the parties of the consequences of when information is revealed in each of the processes. Does this mean that the investigator/mediator must disclose before the commencement of the investigation as to whether the witness’ statements, conclusions etc. obtained during the investigation are either confidential (attorney/client or Rojas) or discoverable? When does the investigator/mediator inform the parties of the mediation confidentiality? Does the mediator determine when to inform the parties as to the end of one process and the beginning of another? When do the parties have an opportunity to select another mediator?
These are not easy questions to answer because there are no definitive guidelines. Keeping in mind the Model Standards of Mediators, which provide that a mediator will conduct the mediation in an impartial manner and that it is based upon the self-determination by the parties, the better practice is to disclose, disclose, disclose! First have a written retainer agreement with the employer that clearly defines the nature and scope of the investigation, the privileges and confidentiality that will attach to the investigation phases. Further, indicate in the retainer agreement that the scope will be made known to all the parties, in writing, before any investigation is conducted. Next, define in the retainer agreement, what will happen if the employer requests that investigator/mediator attempts to resolve the action. Specifically, state in the retainer agreement that at some point in time it will be communicated to the parties the time that mediation will commence, that the mediation confidentiality provisions will be disclosed to all parties and that the parties will be given an opportunity to choose another neutral after the disclosures. This is the first step in avoiding the conflict and confidentiality issues, but it is no guarantee against a zealous advocate from arguing that the entire process was a mediation.
Is the investigator/mediator protected under the Evidence code from being called to trial as a witness, if the dispute did not resolve? The mediator/ investigator will think he or she is safe because they will never be called as a witness if the unsuccessful investigation/mediation proceeds to litigation because of the protection offered under California Evidence Code section 1127. But this statute only applies if you are acting as a mediator in resolving a dispute. The question remains, what role was being played? Written agreements only go so far. Investigators/mediators can get caught up in the process and during the investigation attempt to resolve the matter. Remember that actions speak louder than words. Since the primary talent of a mediator is to be a peacemaker, it is hard to separate the investigator and peacemakers’ role. A zealous advocate will argue the position that is best for the client, not necessarily the scope of retention that is defined in the retainer agreement. Despite being cautious, the investigator/mediator can be placed in a very difficult position which compromises his/her neutrality and ethical standards.
Mediators are peacemakers who entered the profession to resolve conflicts by conducting mediations that are impartial, unbiased and based on self-determination by the parties. Wearing multiple hats as a mediator may have the effect of lowering the standards of practice for mediators by compromising neutrality and confidentiality.
Elizabeth A. Moreno is a mediator and arbitrator in the Los Angeles area and will travel to resolve disputes within the Los Angeles, Orange, Ventura, western San Bernardino and western Riverside Counties. Ms. Moreno has been a mediator since 2000 and concentrates in the areas of labor, employment, real estate and insurance. She has served as a neutral in hundreds of cases. Ms. Moreno is serving a three year appointed term with the California State Bar ADR Committee and serves as the chair of the Diversity subcommittee. Prior to becoming a full-time mediator, Elizabeth was a trial attorney for twenty years, handling large exposure complex cases and class actions involving employment, insurance, real property, and business issues.
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