Over three prior posts on the subject of mediation, I have discussed what mediation is and is not, explained the process of how mediation works, and most recently, examined under what circumstances it makes sense to mediate.  Here, I will conclude this series of mediation posts by breaking down how, once you reach an agreement in principle, you limit the risk of losing it.

After a very long day of back and forth with your mediator, you authorize one last proposal for the mediator to take to the other side.  The mediator comes back 20 minutes later and tells you that your offer has been accepted.  The mediator then invites all of the parties and their counsel into the same conference room in which you began the mediation process nine hours earlier, to go over the terms.  One by one, he goes through each of the six settlement terms, and each time both sides indicate that they agree.

While you do and should feel a sense of satisfaction (even if the settlement is not exactly what you had hoped it would be), do not think for one minute that the process is over.  Indeed, one of … Keep reading

Providing Temporary Accommodations for Employee Disability

It’s never easy to navigate the legal requirements when an employee has a medical condition or  disability.  One of the many complications is providing a “reasonable accommodation,” a process that often requires significant time and careful consideration of how and what medical information can be obtained and scrutinized. 

In providing accommodations, some employers hesitate to relieve employees from certain “essential job functions” temporarily while the employee is recovering from a medical condition, or while it’s unclear how long a condition will last.  Based on the First Circuit’s decision in Jones v. Walgreens, Inc., et al., however, relieving an employee temporarily from certain “essential job functions” does not require the employer to permanently eliminate those essential job functions from the employee’s job.

In Jones, plaintiff-employee Jones, a Walgreens store manager, had been on several leaves of absence from January 2004 to October 2005 after suffering a knee injury when she slipped on ice outside Walgreens’ office.  In her second leave of absence, Jones indicated that she hoped to return to work with “reasonable accommodations.”  Walgreens welcomed her back to work with some physical lifting, bending, squatting and twisting limitations.  Twenty-two months later, in October 2005, Walgreens offered her … Keep reading

After having read Mediation 101 and Mediation 201, you should have a solid understanding of what mediation is and how it works.  Now, let’s discuss when it makes sense to mediate.

While different types of cases get resolved through mediation every day, mediation is not likely to be successful in every case.  As a general rule, when parties agree to mediate, it is implied that they are willing to at least consider some sort of compromise or “outside the box” resolution to the dispute (it is for this reason that I believe court mandated mediation often leads to nothing more than a waste of time and money).  Part of the reason for this is that no matter how reasonable a party’s position may be, mediators are wired to be impartial, and telling one party from the outset that it must capitulate goes against mediator DNA.  Another reason for this is that all but the most inexperienced litigators know that mediation implies some sort of compromise.  Thus, if a party claims at the mediation that it will not compromise one bit, such a position is not likely to be taken seriously – even if it is genuine.  Likewise, a … Keep reading

Hopefully, Mediation 101 gave you a clear understanding as to what mediation is.  Now, let’s discuss how mediation works.

Pre-Mediation Considerations

While selecting a mediator can be critical, unlike when selecting an arbitrator, parties should not be very concerned that a biased mediator might force them to enter into a “bad” settlement.  Because mediation is voluntary, a mediator simply does not have the power to force a party to agree to any settlement with which that party is not completely satisfied.  What is crucial about the selection of the mediator, however, is that s/he has credibility with the ultimate decision makers, i.e., the parties, not counsel.  Without credibility, the parties are not going to give the mediator’s comments the full consideration that might lead them to modify their positions and settle.  Consequently, it is important to ask questions like the following:

  • If industry knowledge is important in understanding the dispute, does the potential mediator have sufficient industry knowledge?
  • Will it impress the parties and increase the persuasiveness of the mediator if s/he is a former judge and/or has some other has special background or experience?
  • How many cases similar to the one at issue did the
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Before last week, a non-Massachusetts employer could insulate itself from employee claims under the Massachusetts Weekly Payment of Wages Act (“Wage Act”) simply by having its employees agree that all employment disputes be litigated in the employer’s home state.  That all changed with the Massachusetts Supreme Judicial Court’s decision in Melia v. Zenhire, Inc.   

In that case, plaintiff Edward Melia, who worked and lived in Massachusetts, challenged the validity of a forum selection clause contained in his employment agreement requiring that any disputes related to his employment  be litigated in New York.  Melia’s claims against Zenhire included claims for unpaid wages, unpaid vacation and sick day wages, severance pay and unreimbursed expenses.  Melia argued that the forum selection clause was a “special contract” prohibited by the Wage Act and against Massachusetts public policy.  The SJC disagreed, determining that, due to comity amongst state courts, and in light of most states’ choice of law rules, there is a presumption that other jurisdictions would apply laws such as the Wage Act.  As such, there was no public policy reason to invalidate a forum selection clause in an employment agreement. 

The SJC did leave one opening for employees in this regard, in … Keep reading

Over the past 15 years, Alternative Dispute Resolution (ADR) has become all the rage as parties try to limit the time and expenses they might expend if forced to litigate disputes in court.  One of the ADR mechanisms whose use has exploded in growth is mediation.  Indeed, it seems that every month or two I see an announcement that a recently retired judge is joining one of the big mediation firms, such as JAMS, or is starting his or her own mediation practice.

While I often engage in mediation as a way to try to resolve my clients’ disputes, it is important to understand what mediation is, and what mediation is not, so that you can evaluate whether it might be an appropriate vehicle to use in an effort to settle a particular dispute that you or your business might have.

Although people often confuse mediation with arbitration, the only real similarity is that parties generally cannot be forced to either mediate or arbitrate a dispute; they must voluntarily agree to engage in either process.  Substantively, however, mediation could not be more different than arbitration.… Keep reading

With greater frequency, the National Labor Relations Board (NLRB) has been exerting its authority over non-union employers.  I’d like to share an article that I co-authored with my colleague, Mike Leahy, for the Spring 2012 issue of Focus, our firm’s quarterly newsletter, about a few recent developments from the NLRB affecting non-union employers, resulting from the use of social media.  The full issue of Focus is available here.

A few years ago, many employers feared that use of social media would lead to disclosure of their confidential information and trade secrets, and implemented policies to stay ahead of the curve.  Over the past year, high profile cases involving those social media policies have provided a timely reminder that the  Depression-era National Labor Relations Act (NLRA) continues to apply to union-free workplaces, and not just unionized workplaces.

Indeed, the current chair of the National Labor Relations Board (NLRB) recently announced that he wants the NLRB to be viewed as a “resource for people with workplace concerns that may have nothing to do with union activities.” He has the law on his side.  Section 7 of the NLRA gives employees the right “to engage in…concerted activities for the purpose … Keep reading

As suggested in “The Effective Use of Liquidated Damages Provisions,” there can be a fine line between an enforceable liquidated damages provision and an unenforceable penalty clause.  Thus, when drafting an agreement, it is important to keep in mind that a payment-for-breach provision will only be enforceable if, at the time of drafting:

  1. It would be difficult to determine the damages that would be caused if the contemplated breach were to occur; and 
  2. The amount of the of the liquidated damages is a reasonable estimate of the actual damages that your company would suffer if there were a breach.

In light of these overarching principles, be sure that the contract expressly states that:

  1. All parties agree that if a breach were to occur, it would be difficult to determine actual damages;
  2. Based on what the parties presently know (include specifics if you can), they agree that $X is a reasonable estimate of the damages that would accrue if a breach occurred in the future; and
  3. All parties agree that the amount of liquidated damages is fair and reasonable and would not act as a penalty to the breaching party.
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In my previous post, I shared three best practices for preparing for a potential employee termination.  Here are two additional steps to consider in the termination process:

1. Prepare for possible exit interview scenarios.

Terminations are never easy and often become very personal.  In most situations, the key is to conduct the termination meeting as respectfully as possible.  In order to do so, it is advisable to have a plan addressing the following points:

a.  Who will be at the meeting?  Whenever possible, have two company representatives present, even if one is simply there to take notes.  Consider security outside the room in those situations where the employee may become volatile.

b.  What security measures will be taken while the employee is in the termination meeting?  Consider placing limitations on or completely shutting off access to company e-mail, company credit cards and company computer systems.  If the termination will not occur until a few weeks later, or transition is required from the employee, then completely shutting off access may not be the best course.  Limiting access to certain areas of the computer systems may be appropriate.

c.  What will be said?  Have a very short introduction, convey the … Keep reading

In an earlier post, “Is Arbitration Quicker, Cheaper and Better for You?” I discussed why having a faster and less expensive dispute resolution mechanism may not be in your best interest.  Make no mistake, however, the differences between traditional litigation and arbitration go well beyond the time and expense it takes to complete the respective processes.  The following are a few of the more notable substantive distinctions between these two dispute resolution mechanisms:

  1. Litigation allows for extensive “discovery” (e.g., depositions, document requests and interrogatories) from parties and non-parties.  Discovery in arbitration often is limited to document requests, but can be broadened by the arbitrator or agreement of the parties.
  2. Because arbitrators are not required to abide by any Federal or State Rules of Evidence, they routinely consider information that never would be admissible in court.
  3. A “bad” decision in a court of law almost always can be appealed.  An arbitrator’s decision, on the other hand, rarely can be appealed – even if it obviously is contrary to the applicable law.
  4. Notwithstanding a lack of empirical data, most litigators agree that arbitrators are much more likely than a judge/jury to issue a compromise decision and/or one based on fairness principles
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