JAMS ADR Blog by Chris Poole
From health and safety concerns of the COVID-19 pandemic, to systemic discrimination issues amidst the Black Lives Matter movement, to continued fallout from the #MeToo movement, employers are currently facing a unique environment that is both increasing the number of workplace disputes and changing how they handle the disputes.
In this new podcast from JAMS, two neutrals from California and New York discuss how today’s environment is shaping employment disputes, mediation’s role in resolving these disputes, how the process differs state-to-state and the elements of a successful mediation.
Moderator: [00:00:00] Welcome to another special podcast from JAMS. Today, we're exploring the challenges of mediating employment-related disputes in this extraordinary environment, which has given rise to claims around employees' health and safety during the coronavirus pandemic, systemic discrimination issues amidst the Black Lives Matter movement, and workplace #MeToo allegations.
Our guests are two JAMS neutrals with decades of experience mediating complex employment disputes. On the East Coast, in New York City, we have Chris Kwok, whose career has included a 15 year stint at the New York District Office of the U. S. Equal Employment Opportunity Commission, where he mediated hundreds of employment disputes.
On the other coast in San Francisco, we have Shirish Gupta who has over a decade of experience, mediating employment disputes, including wrongful termination, discrimination, and retaliation claims. Gentlemen, thank you both for joining me for this very important conversation. I want to ask both of you: What types of employment disputes have you been seeing over the last year or so, and how does this current political, social and cultural environment make these employment disputes more complicated?
Shirish, I'll start with you.
Shirish Gupta: [00:01:18] So the types of matters I've been seeing over the past year or so, I don't think they've changed that much since before the #MeToo, or the movement for Black lives, but the way they're viewed now is I think very different.
So, let me give you an example. I had a matter, say, six years ago, where there was a white employee who was terminated for making racist comments, and she brought a wrongful termination action against her employer. And that matter was able to be settled for a payment to that employee. Were that case to be brought today, I think the chance of that employee receiving any payment is minimal. And employers might actually want to take a public stance saying, “We don't support racism, and we don't pay people who have been racist at work.”
I'm not making a statement about whether the person [or] what they did was racist or not. I think the environment has dramatically changed, so employers would approach that differently.
Moderator: [00:02:19] And Chris, how about you? What are you seeing on your side of the country?
Chris Kwok: [00:02:22] I've seen a lot of things that have come in the wake of the #MeToo movement. And that is men that were fired because of sexual harassment complaints, and that's something new. They didn't use to be fired on the first complaint. And so now they are being fired, or terminated, much more readily, and they're coming back and filing complaints because they feel like they haven't gotten their fair shot, or they were treated unfairly as a result. So I've been seeing a lot of that.
Moderator: [00:02:49] Shirish, I assume many of these disputes – they're emotional, they're personal, lots at stake now. What makes mediation a good option for resolving workplace disputes?
Shirish Gupta: [00:03:00] So on the personal and emotional side, being called a racist or something like that is extremely personal. And having that out in open court – I think many people would want to avoid that.
So the ability to take your dispute to mediation or to arbitration where the matters are private and not subject to open disclosures – there's no reporting requirement, we don't put out a press release afterwards saying that this happened or anything like that – I would think that most parties would want that confidentiality.
And I think that would be a better place for them to get their dispute resolved.
Chris Kwok: [00:03:41] Yeah, it's a really human scale solution for human scale problems. And litigation is, I often say, not human scale. I think it's corporate scale. Litigation was not made for human beings, maybe for corporations.
Some might say they are one at the same. When you walk people through the litigation universe, tell them how they're avoiding it, walk them through potential solutions and why they might choose them, it feels very human scale. They get to ask you questions, you get to answer them. You get to guide them through something that they have generally never encountered before. So it's [a] very custom fit. It's like a journey. It's a process. We take them through the day of the mediation and often it can be a great solution for them.
Shirish Gupta: [00:04:18] If I could just jump in for a second. One of the things I love working with Chris is the observations he makes about systems, and he can see a problem and then walk it back and realize "Alright, what is the system or circumstance that led this problem to come into place?" And I think his experience at the EEOC has really given him the ability to see the forest.
And sometimes that's something that we don't get to see that often, but he can see that whole process and then try to figure out a way for resolution based on that. That's an amazing skill.
Chris Kwok: [00:04:50] Thanks Shirish.
Moderator: [00:04:53] Well, obviously there are challenges and Chris, I want to ask you about some of those challenges that you face in resolving workplace disputes.
How do you ensure that all parties are treated fairly and believe they are being treated fairly? I know you have written about this in a piece for the New York Law Journal recently.
Chris Kwok: [00:05:08] I think that Shirish has identified maybe the way I like to approach things is to tell people where they fit within the larger picture and then give them the option to decide where to go within that larger system, once they have a bit more information. So, I think one of the things that we can do to make things more fair is to give people a sense of the easier options. These are maybe the costs to pursuing these options. These are the pluses; these are the minuses. And then at that point, the person can make a decision.
So I think that's actually really fair, because you're really giving them some view of the path that they might want to choose and helping them sort of gather information to make that informed decision, the best way that they can.
Moderator: [00:05:51] What are some of the most common biases or misunderstandings of mediation that you come across?
Shirish Gupta: [00:05:58] I'll jump in for a second. This isn't bias necessarily, but it's more unfamiliarity with the process. I often do mediations with unrepresented parties and more often than not, I think they don't understand the difference between mediation and arbitration. And this is something that my parents still don't understand about what I do. I've been doing it for a while, but they still think that I arbitrate only.
And so, I spend a fair amount of time explaining the difference between mediation and arbitration and how mediation is voluntary. And if the deal on the table doesn't work for you, say no and walk away, but ideally explain to me how, at the end of the day, you're going to do better than whatever we can get here. So, let's talk about your strategy going forward. So it's the misunderstanding about the differences between mediation and arbitration that I see on a fairly regular basis with unrepresented parties.
Moderator: [00:06:52] I'm happy that both of you are here, because I know the court systems in California and New York historically have taken different approaches to including mediation in the employment dispute process.
Shirish, can you start by talking us through California's approach?
Shirish Gupta: [00:07:04] Sure. In California, there's an assumption that you will choose some form of ADR, and what that basically means is mediation. There's also settlement conference options. So in federal court and in state court, at your first case management conference, the judge is going to look at you and say, “Okay, what ADR option do you select?”
And if you say, "Judge, no, we want our day in court. We want a trial," they will say "You don't seem to understand the process here. If everyone said that to me, I would never get anything done.” So we need to explore mediation or settlement conference, possibly arbitration, but generally speaking, there's an expectation that you will make good faith efforts to settle your dispute at some point early on in your federal or state court action.
Moderator: [00:07:51] And Chris, New York just recently adopted some similar procedures. How's that going? And do you think that New York can learn from California?
Chris Kwok: [00:07:59] California has long led using mediation and arbitration at the state court levels and New York state courts just began something they call "presumptive mediation" last year, rolling it out.
And so beyond labor and employment disputes, almost everything will begin presumptively in mediation. And that's a big sea change for New York. And although arbitration and mediation have long been used in employment law, now it's really seeping to other areas and all through New York state courts. So the process of rolling that out and how those programs will be created will differ slightly from county to county, because every area in the New York state courts will get to decide how it looks according to some general principles.
So it's still rolling out.
Shirish Gupta: [00:08:41] I would expand that beyond just New York and California. I was talking with a UK barrister, who's also a mediator, and he was pointing out how in the UK, they changed their practice to include mandatory mediation so that those judges also could help clear their dockets. This isn't just a state issue in the U.S. It's international. And given the resources that are available to the courts, I would expect more and more countries are going to go this way.
Moderator: [00:09:11] I want to turn back to some issues that we talked about briefly – you personally, the skills you bring to the table and sort of what sources and guidance as you bring, when you're trying to resolve these disputes. Chris I'll start [with you].
Chris Kwok: [00:09:25] Shirish talked about system, and he's very acutely, actually, identified the federal government, the EEOC where I worked, but I would take it even back further to law school. Where I went to law school because of critical race studies, and because of Kimberlé Crenshaw, UCLA Law School, and those were systems analyses of race, you know, within the system.
And those are things that informed my analysis. And when I got to the EEOC, out of law school, that's where I got to put that into practice and see that actually play out.
And so those are sort of like the, the legal and political analyses that I bring. But then, you know, once I started practicing as a mediator, you know, we had internal rules, but then also external rules, like the Model Standards of Conduct for Mediators, which sort of informs how we approached mostly unrepresented parties, like Shirish deals with now. I still deal with a lot of unrepresented parties and the unrepresented parties are a challenge. You know, most mediators prefer to deal with represented parties, parties with counsel, cause you're dealing lawyer to lawyer. So it's a lot simpler, but when you're dealing with an unrepresented party, you really have to be careful to maintain your neutrality as a mediator, but then you also have to sort of help guide them in a way that still maintains your neutrality.
So that's a difficult balancing mix. And I think that it's a challenge, but it's also very rewarding.
Moderator: [00:10:42] And Shirish, is there a North star for you in terms of how you go about your business?
Shirish Gupta: [00:10:47] It's funny. When I started mediating, I was trained by the Northern District of California's mediation program. And one of the people in charge of it was a gentleman named Daniel Bowling.
So we had this running joke amongst us who were trained by him. We would always go by, "What would Daniel do?" And it's the idea of, "Daniel would be curious and he would be empathetic." I don't mean to speak about Daniel in the past tense – he's still around and he's a practicing mediator. But it's a reminder of, we don't know everything and no matter how someone is coming across to you, they could still be hurting. They're a person. Even in business disputes, it doesn't matter how clinical it comes across. At the end of the day, these are still human beings and conflict is difficult on us and it's stressful. So, if I can help a non-practicing entity in a patent case, come up with a resolution, then that gives them certainty in terms of their financing going forward.
Similarly, with a Fortune 100 company who has a claim by an employee for, say, a hundred thousand dollars. To say that's immaterial is to give it too much weight in terms of the amount at issue to that company. But to the specific managers that are involved, it matters. To the employee, it matters. To the employee's family, it matters. To the business unit at the company, it matters. At the end of the day, it's still about people.
Moderator: [00:12:10] Shirish mentioned curiosity and empathy. Chris, would you add any other skills or characteristics that parties should look for in a mediator?
Chris Kwok: [00:12:21] I don't know. That's just so good. Honestly, when you started with curiosity, if I might just sort of second that. Maybe answer a different way is to say that curiosity really kind of drives a lot of the ability to be successful. I used to start off when I would talk to the company by saying, "Can you tell me about your business and tell me, you know, how you guys fit in their business and what you do?"
And I always did that cause I was just curious. You know, I always felt like, "Oh my god, I get paid to be really nosy. I hope you don't mind. I'm just being nosy." But what I heard later from their counsel was, "Hey, you know, I really appreciated that. You took time. They were afraid, they were sad, angry that they would be called a racist or things like that. They came in and you asked them, 'Tell me about your company.'" And if they were a small business, people that had grown their company, it's their baby you're asking about. And so you, you get to sort of be interested, they're interested or happy that you're interested, and then you learn something that you will use in your mediation.
So I just wanted to second that to say, I think those two really general things, they seem so general, I think, but they actually become specific as you get into the process. Because people think you can pinpoint, choose the right mediator for a problem that they have. Right?
And I think it's kind of funny that they're like, "Well, for this one, I think this person will be good because they will be heard, because they're corporate," or this or that. We don't make those choices, [as] mediators, we are chosen. And I'm like, that's great. If that ends up being me, great. But I often feel like, okay, I'm not so sure if those things really matter. As long as you pick someone that's intelligent, curiosity-driven, empathetic – that can stretch to sort of encompass many different fact patterns, which is what we encounter. We encounter everything. We have no idea what we're encountering. Sometimes I hear in sort of the language of the counsel, why they chose me and in the back of my mind, I'm like, that's very, very interesting because I don't see myself like that, at all, you know, and I'm like, but I'm glad you chose me anyway, and I'll do my best. Right? I guess, it's a long way of saying, sometimes being so specific, I don't know. Maybe if there's very specific technical substance of problems that need to be understood. Okay. I can see that.
But aside from that, I think those very general terms are just really right on.
Moderator: [00:14:39] Well, obviously the pandemic has created a once in a lifetime situation for mediation, as in-person meetings are not allowed under many state guidelines. JAMS has made a significant push to virtual mediation. Chris, can you walk us through a virtual mediation session for employment disputes?
What challenges have you seen come up, and what are you doing to address those?
Chris Kwok: [00:15:00] JAMS as an organization, one of the great things about being part of an organization, is they really put all these administrative staff, our great administrative staff, to make sure that the Zoom mediations are happening without a hitch.
So they're doing training for lawyers before they come on, if they haven't been on a Zoom mediation. You have people that are sort of there virtually to put people in rooms, to move people in and out. And so, we as mediators continue just like before, when it was in person, we get to focus on the mediation process.
And the new challenges of the mediation process is that, you know, when people are wearing masks, because they sometimes are because they're in the same room with their lawyers or something like that, it's hard to see their face. Sometimes if the mediation is happening in a party’s home, a plaintiff person home, they don't have internet. Their only access is through a phone, so they have very shaky internet.
So, we have to deal with making sure that the lawyers are bringing hotspots or some other hotspot is being sent to them or something like that. That, you know, once they have the software, they know how to come in and come out. It can be heard. They can hear.
Those are the real basic things that we've become up to speed on because it has been now way too long actually. It's a brave new world, and we're still getting used to it. We're losing something, that's for sure. But I think we're gaining a lot. We’re gaining sort of maybe a view into what it will be in the future.
Shirish Gupta: [00:16:22] I welcomed the change. It's killing my home bandwidth and my kids will attest to that when they're on school Zoom. The hotspots I would like to say work well, but they're only so, so. I've had two in-person sessions since the pandemic began. And I will tell you that we were able to resolve them both.
It was a little stressful for the first one, because it was my first time being back in the office. The second one was interesting because on one side I had, I think it was 18 people. And so, we had to get a basketball court, and everyone had their own six-foot table. Everyone was wearing masks, and it was interesting when lunch was brought in, and I saw people take off their masks to see what their face looked like. They did not match at all what I envisioned. So, it was interesting for me that way.
But in terms of the switch to virtual, two things: one is the training that we've gotten here has been stellar. So that way, when I did my first virtual mediation, I wasn't concerned. And now, with the ability to do screen-sharing to take remote control of someone else's screen, it works wonderfully.
And I can get participants who wouldn't have been able to fly in for a session before. But now they can just turn on their computer and log on for an hour or two while we discuss their portion of it. So, there are definite advantages to this. I do miss being with people, but I hope that I can just be with people regularly soon enough.
Moderator: [00:17:53] Let's end this great conversation with the forward looking thought. How do you see this moment that we're in shaping the future of workplace employment disputes? Chris, I'll start with you.
Chris Kwok: [00:18:12] I think that we're going to have a more national practice. We have very regional practices right now for mediators and neutrals, except for the ones that are national, and they're very famous, and they go all across the country. Those are actually relatively rare.
But I think we'll begin to see that more so, because I think that the transaction costs for a national practice are lowering. We can just jump on Zoom. And as long as people are up to speed on state laws, local state laws, that's going to be a possibility. And then, you know, we're going to see a lot more as the heads of departments dropping in at the beginning of a mediation, maybe in the middle, because they can do three or five, right? Let's say if they're keeping watch before, they can do that, but now they can.
So I think once things get back to normal-wise, you know, we're going to see us left with, I think, hybrid models. We're all a lot more comfortable with being online and on video than we were before. And I think that's mediation world, but I actually think that arbitrations are actually even more natural for Zoom-type virtual hearings, because the interaction between individuals is a lot more formal anyway, and getting to know the people is a lot less needed in arbitrations. You just need to see each other, hear each other, ask questions, answer questions. That's it. And an arbitration can cut so many costs for a company.
So I think that in-person arbitrations will still be existing for really large scale disputes. But I think below a certain dollar figure, I think virtual arbitrations will be much more popular.
Moderator: [00:19:36] Shirish, do you agree?
Shirish Gupta: [00:19:37] Completely. On the arbitration side, especially because what I can envision is say, I get a case for Century City, the employee may live in Malibu. They don't have to deal with the traffic of getting to Century City. So just for people, not in Southern California, those distances aren't that far, but when you factor in traffic, it's not fun.
On the mediation side though, I think at the end of the day, it's probably going to stay regional or local for the single plaintiff matters because of the specialization of employment law by state to state. I'll just give a quick example. Today, I had my negotiation class where I teach and the role play we used was something set in Houston, Texas, and frankly, I didn't even know what the name of their code is in Texas. Like, is it the Code of Civil Procedure? So I would just come across looking completely like a rube, like a complete outsider. So I don't think I'd be compelling enough to choose for an employment mediation in Texas, dependent on Texas law. That said, but for a nationwide class action, I think our practices absolutely can be national and we could get more exposure throughout our states and through similar state. California, we're unique when it comes to employment law. And there are many states that are like, thank god we're not California. As a mediator, having lived in the system, I can see its benefits and its costs, but that's what gets us to a resolution sooner or later.
Moderator: [00:21:08] Well, thank you both. I really appreciate your insights.
Chris Kwok: [00:21:11] Thank you so much.
Shirish Gupta: [00:21:12] It was a pleasure being here. Thanks so much.
Moderator: [00:21:14] You've been listening to a special podcast from JAMS, the world's largest private alternative dispute resolution provider. Our guests have been Shirish Gupta in San Francisco and Chris Kwok in New York. For more information about JAMS, please visit www.JAMSADR.com.
Thank you for listening to this podcast from JAMS.