Bruce Feldacker Feldacker & Durbin, P.C.

B. Many of the cases involve multiple claims under different statutes or common law doctrines arising out of the same factual situation, such as common law tort cases (intentional infliction of emotional harm, defamation, assault, or termination in violation of public policy) added to a discriminatory discharge case.

1. The mediator’s substantive subject matter knowledge may be more important in assisting the parties to resolve an employment law dispute than it is in many other (but not all) other subjects for litigation.

C. Employment law cases tend to involve a small circle of attorneys who regularly represent either one side or the other (this is not as true as it used to be). The lawyers may know each other well.

1. This may either assist the mediator in resolving a case, or be an impediment to settlement. There may be “bad blood” between the attorneys involved. The “trick” is finding this out as soon as possible.

D. There may be a greater disparity in the sophistication level of the parties in employment law cases than in some other subject areas. Don’t underestimate the other side. Be careful to treat all participants with respect.

1. There are probably more pro se claimants in employment law cases than in other subject areas. Sometimes pro se claimants are reasonable (they just want a reasonable resolution and to move on with their life) – but sometimes they are not (the latter cases usually end quickly).

E. Employment law cases may be more emotionally charged than some other subject areas.

1. The person who made the employment decision or committed an alleged act of harassment may be participating in the mediation, and may have a very high stake in defending the action taken;

2. Jobs are very important to people. A large part of a person’s self-identification and self-esteem are through their job, and employees believe they have a stake in (a “right to”) their employment even though they technically have “at will” status.

3. Harassment situations may be volatile – make sure that the claimant feels able to be in the same room with the respondent (usually they are).

4. Possibility of violent conduct at the mediation (I have never had this happen).

E. Money isn’t everything. The right to reemployment or to a promotion (check early on such possibilities), changing a termination to a voluntary resignation, a positive reference letter, or a non-disparagement clause may be important issues.

II. Preparation for Mediation.

A. When is the Best Time to Mediate? There is no one single “best time.” Some

matters require extensive pre-mediation investigation, but many do not.

1) In court cases, avoid the temptation for excessive discovery. Depositions of key players in a dispute may be sufficient.

2) Waiting too long may increase the cost and harden positions to the point that the parties are far less likely to resolve their dispute or they may reject mediation altogether.

B. Who is your client? In the “new” litigation climate, state law claims may include individual respondents as well as the employer as an entity. Check out conflict-of- interest situations ahead of the mediation, and be sure you can represent the individual respondent(s) as well the employer (and make sure the mediator knows the identity of the individual respondents to avoid a mediator’s conflict).

C. Who are the decision makers and other key persons involved in the dispute? Local Court Rules, such as Rule 16-6.02(B) of the U.S.D.C., E.D.MO., may require that a person (other than outside counsel) who has authority to settle and who is knowledgeable about the facts attend the mediation (unless excused for hardship by the Court), but you would want these persons to attend even if not required!

1) On the respondent’s side, The H.R. Director may have primary responsibility for the mediation, but if the decision in dispute was made by a higher corporate official, or if that official must approve any settlement, that official should be involved as early in the process as possible, and have that decision maker present at the mediation even if not required by the governing rules. Rushed phone calls during the mediation itself usually cannot adequately convey the “atmosphere” of the mediation process, and may result in a lost settlement opportunity.

2) Subject to court imposed personal attendance requirements, if a particular key person cannot attend in person because of time or cost constraints, try to have that person participate fully by phone, i.e. take part in the opening session on a speaker phone and in the separate caucus of that party. As a last resort, have the person available on a “stand-by” basis.

3) If a settlement reached in mediation must be approved by a governing Board, e.g., a Board of Education or the Board of a non-profit organization, have a representative of that Board present at the mediation. Don’t risk rejection by a Board that does not appreciate the reasons for the settlement reached.

4) Query: even if the employer attorney perceives of no conflict in representing an individual respondent, should the individual still be present at the mediation?

D. Is there insurance? If so, Local Rules, such as E.D. MO Rule 16-6.02 (B) (3), may require that an insurance representative attend in person unless excused for hardship “if their agreement would be necessary to achieve a settlement.”

1) Some insurance policies covering employment law claims have high deductibles, and some employers may consider delaying the involvement of the insurer until after the mediation in the belief that the claim will settle within the deductible amount. Be careful about this approach. The claim may have a higher settlement value than you realized before the mediation, and you may have lost an opportunity for settlement by not involving the insurer earlier in the process. Don’t miss an insurance claim notice deadline while waiting for the mediation’s result.

2). Consult with an insurance adjuster before mediation in much the same as you would prepare the employer itself.

E. How much preparation is necessary? One of the advantages of mediation is that it is less formal, less time-consuming, and less expensive than a trial, so you should not need to prepare quite as intensely as for a trial; but that doesn’t mean to come in with minimal preparation. As in the trial itself, mediation is more likely to be successful if a party comes to the mediation with a clear understanding of the facts of the case and the applicable law. Put in the time you need to be on top of your case.

F. Consult with and prepare your client or mediation team before the mediation session (either in person or by phone depending on the circumstances).Attorneys (or the H.R. Director in cases without an attorney’s participation) should go over the key issues in advance with their client (or mediation team), including the strengths and weaknesses of the case. They should familiarize clients/mediation team members with the nature of the mediation process: that it is an informal process; that the mediator’s job is to facilitate a voluntary agreement between the parties rather than to impose a settlement (in contrast to binding arbitration); that there are no witnesses called; and that the procedure is confidential.

1) The mediator will probably ask you to assess your strengths and weaknesses during private caucuses in the mediation, and your client should be prepared for this frank discussion.

2). Discuss the main arguments that will probably be made by the opposing party with your client or mediation team members beforehand so that they will not be “shocked” by them when they are raised at the mediation session.

3). Discuss possible settlement proposals before the session so that the “decision makers” will have given thought to them in advance.

G. Come with key documents that may assist in the settlement of the case, or (byagreement through the mediator) exchange such documents in advance.

1) For example, if there are jurisdictional issues which must be resolved to settle a dispute (e.g., whether a respondent employer employs enough employees to be covered by the law at issue), either exchange or bring the records and documents that may help to resolve the issue with you to the mediation session.

H. If there are key persons, other than those required to attend by applicable Local Rules, you may need to contact concerning factual issues likely to arise during the mediation (e.g. accountants, a project engineer, or an employee benefits coordinator), have those persons “on call” so they can be reached on short notice.

I. Pre-mediation conferences. Some court rules may still prohibit pre-mediation ex parte communication between the mediator and the parties, but such communication is now permitted by E.D. Mo. Rule 16-6.04(B). At a minimum, the mediator should contact the parties to make sure the mediator does not have a conflict of interest.

1) Either ex parte contact, or perhaps a joint (telephone) conference, may be needed to iron out some issues in advance, such as the need for pre-mediation position statements, the advance exchange of documents, or the procedures to be followed in the mediation itself. e.g., whether the parties wish to follow the “standard” practice of an opening joint session or prefer to begin in separate caucuses (Can or should the alleged victim of sexual harassment be in the same room as the alleged perpetrator?)

a) As previously noted, too many formalities should be avoided in mediation; and, unless requested by the parties, lengthy detailed pre-mediation conferences should be held only when truly necessary based on the circumstances of the case.

2) Some respondents ask for the claimant to make an opening monetary demand prior to the mediation so that they can gauge the likelihood of success in the mediation. However, the claimant may make a very high demand in response, and this may cause the respondent to withdraw prematurely from the process before it begins, if permitted to do so by applicable rules -- sometimes in a case that would have been settled if the demand had been conveyed by the mediator during the course of the mediation session.

J. Pre-mediation position statements. Pre-mediation statements are not required in EEOC mediations. In situations where such statements are required, or if the parties voluntarily decide to submit them in a particular case, they should be short and to the point, covering the basic facts and applicable law (depending upon the mediator’s familiarity with the field.) This is a matter that may be considered in a pre-mediation conference with the parties. Key documents necessary for the mediator to understand the case should be included with the position statement for the mediator to review prior to the mediation session.

K. Prepare opening statements. Prepare your opening statement in advance, just as you would your opening to a jury. (See suggestions for an opening in Part III below).

L. The respondent should prepare a proposed settlement agreement in advance that can be modified as necessary and signed at the mediation session – bring a disk copy!

1) Depending on the case, such agreements may, inter alia, customarily

include: a full release of all claims; confidentiality requirements, with penalties for violation; mutual non-disparagement pledges; a statement as to the nature of the payments made (e.g. back and/or front pay, fringe benefit contributions, damages for physical harm, reimbursement of medical expenses, damages for pain and suffering, other compensatory or punitive damages); provisions as to the manner for paying the settlement amount (e.g., the date of payment, installment payments if any, and authorized deductions [employment taxes, etc.] ); responsibility for taxes owed on the payment, if any; and provisions for two checks, one for the party and the other for his/her attorney.

2) In employment cases the parties may agree to change an employee’s work

record to reflect a voluntary resignation rather than discharge; to purge unfavorable comments in a personnel file; provide for a favorable letter of recommendation; or provide that an employee will not reapply to the respondent employer for work in the future. Note: in employment cases, if the employee is age 40 or over, and the settlement purports to apply to possible age discrimination, be sure that the settlement complies with the substantive and procedural requirements of the “Older Workers Protection Act,” 29 U.S.C. Section 626 (f) (generally at least 21 days to consider a settlement [longer in some situations], and at least 7 days following execution to revoke it).

III. Conduct of the Mediation Session.

A. The ABA Section of Dispute Resolution has published a “Final Report on Improving Mediation Quality” (see Bibliography) which emphasizes four key elements as important to mediation quality: 1) Preparation for mediation by the mediator, the parties, and counsel; 2) Case-by-case customization of the mediation process; 3) “Analytical” assistance from the mediator; and 4) Persistence by the mediator.

B. With due consideration of the Final Report’s stress on the need to customize the process for each case, the procedures generally followed in a mediation, and the practice issues related to them, are outlined below:

1) Only the parties to the dispute are permitted to attend the mediation session. Others may attend only with the permission of the mediator and the other parties.

a. It is common for an individual party, especially one proceeding pro se, to have a spouse, family member, or sometimes a close friend present.

b. Any person who attends in addition to a party must agree to the same confidentiality requirements that bind the parties.

2) Mediation sessions commonly begin with short separate caucuses between the

mediator and each party in which the mediator reviews the procedure to be followed during the mediation, answers any questions the parties may have, and determines whether either side has any issues that need to be discussed in private before the first joint session. This is an important opportunity for the mediator to make sure that the parties themselves have a clear understanding of the mediation process, i.e. that the attorneys have done their job and properly prepared their clients!

3) The opening joint session begins with a general introduction. The mediator will

explain the mediation process (e.g., its informality; how it differs from binding arbitration; the role of the mediator as a facilitator rather than as an evaluator) and outline the procedures that will be followed. Some of this may duplicate the subjects covered in the initial separate caucuses.

(a) After the mediator explains the process, he/she may ask all parties to introduce themselves, giving general information about both their personal and professional backgrounds as they wish.

(1) This process differs markedly from the formalities of depositions and trial, and serves to emphasize the informal nature of the procedure and sometimes brings out common interests or background facts (e.g., attending the same high school!) that make settlement easier.

(b) The mediator will stress the confidentiality of the procedures (most mediators

may require the parties to sign a confidentiality agreement in addition to the confidentiality requirements imposed by a court rule).

the facts and, to a lesser extent, the applicable law (some mediators may ask the parties to state their positions on the appropriate remedies; others may prefer to leave such contentious issues to discussion in the separate caucuses).

(d) Openings are a matter of personal style, but you’re trying to settle! So, it is

generally better to be conciliatory rather than confrontational.

(1) An employer’s expression of regret for the employee’s situation or an apology, even without any admission of liability, may be very helpful.

(e) The mediator will encourage the actual parties, not just their representatives, to participate in this process. Some attorneys are reluctant to have their client speak, but this may be an important opportunity for the claimant to “vent,” and help move the settlement process forward. Discuss this issue prior to the mediation.

4) At the completion of the introductory statements, the mediator commonly

divides the parties into separate caucuses for the duration of the mediation process (Some mediators may keep the parties together for most if not all of the mediation, and caucus only if absolutely necessary).

(a) In the caucuses, the mediator may ask the parties to: (1) clarify the

factual and/or legal interests; (2) identify what they hope to achieve in the litigation (their interests); (3) openly assess the strengths and weaknesses of their case and consider the likely outcome on both liability and damages issues; (4) consider the costs (tangible and intangible) of continuing the litigation, win or lose, against the benefits of settling now; (5) propose and consider the other party’s proposals for settlement; and (6) consider the possible compromises that may ultimately lead to an agreement. (This process, in part, is the type of “analytical assistance” to which the “Final Report on Improving Mediation Quality” refers).

(b) No facts that either party states to the mediator during neither a caucus;

nor any of the evaluations they may make as to the strengths or weaknesses of either party’s case etc.; will be revealed to the other party without consent of the party making the statement.

assess their chances of prevailing in the lawsuit and the amount they are likely to win or to lose; but the mediator is using this technique with both parties as he/she endeavors to assist the parties in finding common ground.

(d) Truth in dealing with the mediator and between the parties is important

to success. The Rules of Professional Responsibility apply to attorneys participating in a mediation. Thus, especially in court annexed mediation, the attorneys must exercise candor in the factual representations they make. [See Comment [1] to Rule 4-3.3 (Rule requiring “Candor Toward the Tribunal” applies to “an ancillary proceeding conducted pursuant to the tribunal’s adjudicative authority.”)].

(e) It usually takes several rounds by the mediator in the caucuses before an

agreement is reached. A mediation may be completed in half a day, but you should allow a full day for the process.

(f) The mediator may bring the parties back together at the end, whether or

not an agreement has been reached, if the mediator believes that such a session may lead to a more positive atmosphere at the conclusion or – even if the matter was not settled – if the mediator believes that a statement as to the parties’ good faith in the process may still lessen the friction and lead to a more cooperative relationship if the litigation must proceed.

5) After basic agreement is reached, the mediator usually brings the parties

together again to work out the details of the settlement and draft the appropriate documents. If the parties are represented by attorneys, the parties usually do not sit in on this drafting process.

(a) Don’t leave “language” issues to the very end of the mediation process.

They should be discussed as the case moves along so that neither side is surprised by a provision in the proposed settlement document (e.g., waiver of the employee’s right to apply for re-employment).

(b) As discussed in Part I above, it is a good idea, and may save days or even

weeks in the settlement process, for the respondent to bring a complete disk copy of the proposed settlement and release to the mediation session.

IV. Keys to Successful Mediation.

A. To be successful in mediation, a party should:

1. Be realistic in his/her assessment of the case; e.g., the likelihood of prevailing,

either at the Summary Judgment stage or at trial, and the amount of the potential recovery.

2. Come to the mediation session with a positive attitude that agreement is

likely.

3. Think ahead about the issues that will come up and his/her position on them.

(a) For example, in an employment law case, the employer should consider

whether it would be willing to offer reinstatement to a terminated employee as part of the settlement; whether there are any undisputed amounts owed to the employee (e.g., accrued vacation or sick leave benefits); the possibility of continuing insurance coverage for a terminated employee as part of the settlement; whether an employee has any vested retirement or other benefits and/or whether an employee could be offered retirement as part of a settlement agreement; and whether an employer is willing to provide the employee with a positive letter of reference.

4. Be polite and respectful to the other parties – avoid personal attacks.

5. Be patient and don’t give up hope – allow enough time for the process to

work. It’s not where the parties start, but where they end that matters.

(a) There may be “ebbs and flows” during the day. Cases that appear hopeless at

times frequently settle. Don’t walk out too soon!

(b) Don’t be locked into a rigid formula for settlement demands. Parties do not

always need to “split the difference,” and parties may close the gap between them at different speeds or dollar/percentage amounts.

6. Be forthright to the mediator. He/she will not release any information to the

other side without your permission.

7. Advise the mediator if you have a recalcitrant client or there are other special

circumstances for which the mediator should take a more “pro-active” or evaluative approach to resolve a dispute than is customary with mediators used to the facilitative method. (Remember, however, that the “best” settlement is one proposed by the parties.)

V. Suggestions for breaking impasse.

If you follow the techniques discussed above, you have hopefully prevented an impasse from developing, but if an impasse occurs:

1. Move on to other open issues, if any, and then come back to the issue at

impasse.

2. Ask for a more detailed explanation of the reason(s) for each party’s position

on the impasse issue. This may lead to the development of another approach

that will meet the interests of both sides.

2. Do a “reality check.” Is going on with the dispute, or the litigation, really

better than resolving the matter now? How realistic is it that the party is likely

to prevail, or to do so much better through litigation, as to risk rejection of the

other party’s “final offer?”

3. What is the best, or worst, possible result if the matter is not settled? Are

these possibilities worth the “gamble” of future litigation or continuing to live or

work under the conditions in dispute?

4. On the employee’s side, does the employee really want to wait two or three years more to receive a settlement? Does the employee have a special need for a settlement now—educational plans, the possibility of moving, or health issues? Could the employer move or be out of business? Does the employee really want to continue working for an employer while the litigation continues?

5. On the employer’s side, if the employee is still with the company, does the employer really want the employee around for several more years, risking further litigation, while the current case continues or the underlying conditions continue to fester? How likely is it really that settling a case will only encourage other employees to sue? Shouldn’t every case be treated based on its own merits? Can’t this concern be minimized by confidentiality agreements and non-disparagement clauses?

6. If there are multiple issues, consider a trade-off. Agree to the other party’s

position on a troublesome issue if it is willing to accept your proposal on another

point.

7. Concentrate on the common interests in resolving the dispute that brought

the parties together – look again for a common solution. “Brainstorm” over

possible solutions. This can lead to new ideas that break the impasse.

8. Consider a “mediator’s offer,” but only if there is a strong possibility that the

proposal will be accepted. Otherwise, there may be nowhere else to go!

9. Have the parties confidentially list their final very best settlement figure on a

slip of paper they each submit to the mediator. Based on the difference between the

two figures, the mediator may the suggest the parties “split-the-difference,” propose a mediator’s settlement, or continue the mediation process if the figures the parties have submitted indicate that it would be profitable to continue

10. Remember, a partial agreement may be better than no agreement at all. As a

last resort, “sign-off” on what you have agreed to, and leave the other remaining

issues to another day.

Good luck and much success with your next mediation!

BIBLIOGRAPHY/USEFUL RESOURCES

A. The following texts contain very useful information on the dispute resolution/mediation process. They are available through Amazon.com and other sources:

§ ABA Section of Dispute Resolution, Task Force on Improving Mediation Quality, Final Report, www.abanet.org/dispute);

§ Beer & Stief, The Mediator’s Handbook;

§ Cooper, Nolan & Bales, ADR in the Workplace (2^nd Edition) (West Group 2005) (Covers both traditional labor arbitration and employment law arbitration and mediation processes);

§ Fisher, Ury and Patton, Getting to Yes: Negotiating Agreement Without Giving In;

§ Kovach, Kimberlee, Mediation: Principles and Practice;

§ Moore, Christopher W., The Mediation Process: Practical Strategies for Resolving Conflict;

§ Nichols, Peg, Mediation Survivor’s Handbook (Weir Box Publishing, 2006),

§ Reardon, Kathleen, The Skilled Negotiator: Mastering the Language of Engagement;

§ Ury, William, Getting Past No: Negotiating Your Way from Confrontation to Cooperation.

B. The Association for Conflict Resolution (www.acrnet.org) has many excellent publications listed in the Publications and Resources sections of its web site. See in particular the publications entitled “Strategic Planning for Mediation” (Guidelines for setting up a workplace mediation program in a governmental situation); “Designing Integrated Conflict Management Systems, Guidelines for Practitioners and Decision Makers in Organizations,” a report by the Society of Professionals in Dispute Resolution (now merged with the ACR). Another excellent publication on the ACR web site is the study entitled “Best Practices for Government Agencies: Guidelines for Using Collaborative Agreement-Seeking Processes.” The site includes a list of mediators designated as Advanced Practitioners in Workplace Mediation.

C. The National Policy Consensus Center (NPCC) is a not-for-profit organization established by a number of state officials to encourage the growth of ADR procedures in state government. Its website (www.policyconsensus.org) contains much useful information on ADR processes as applied to state government as well as links to other interested organizations.

D. The American Arbitration Association (www.adr.org) has many excellent publications on the Dispute Resolution Process listed in the Education section of its web site.

E. The State of Maryland Mediation and Conflict Resolution Office (MACRO) conducted a study entitled “The Use of Alternative Dispute Resolution (ADR) in Maryland Business: A Benchmarking Study (2004).” Although focused on the business use of mediation, the Study would also be of use to officials considering the adoption of an ADR program within a governmental agency. Macro’s web site is www.courts.state.md.us/macro.

F. Mediate.com is a helpful website including articles on the dispute resolution process and lists of mediators/dispute resolution professionals in multiple fields and geographic areas.

G. The Association of Missouri Mediators website (www.mediate.com/amm) includes a list of qualified member mediators as well as articles on the mediation process and links to other helpful websites.

Biographical Information

BRUCE S. FELDACKER

Attorney Bruce Feldacker is a partner in the St. Louis law firm of Feldacker & Durbin, P.C., practicing in Missouri and Illinois. Bruce is the Immediate Past-President of the Association of Missouri Mediators, and Co-chair of the ABA Labor & Employment Law Section, Committee on Alternative Dispute Resolution in Labor & Employment Law. He is designated as an advanced practitioner in Workplace Mediation by the Association for Conflict Resolution.

Bruce serves as a contract mediator for the EEOC; as a neutral mediator in employment law and general civil disputes, in both federal and state court and private pre-litigation dispute resolution programs; the Postal Service Redress and other governmental employment mediation programs; FINRA(formerly NASD); and the Nuclear Regulatory Commission. He has mediated over 500 matters.

He is an Adjunct Professor at St. Louis University Law School where he teaches a course in employment law, and the author of “Labor Guide to Labor Law,” 4^th edition, a widely used text and reference book. He received his J.D. from the University of Chicago Law School and has an LL.M. degree in labor law from Georgetown University. He is a past Chair of the BAMSL Labor and Employment Law Section. Please visit his website: www.mediate.com/feldacker or contact him at laborlaw@anet-stl.com.

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