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Mediation in the Workplace
1.
Media&ng Workplace Disputes
By Lorene F. Schaefer, Esq. Mediator & Workplace Inves&gator www.OneMedia&on.com © Lorene F. Schaefer, Esq. www.WinWinHR.com
2.
Employee Lawsuits Are
Costly Costs to defend typical employee lawsuit - $150,000+ Length of time (including appeals) – 2 to 4 years Non-Economic Costs Stress, anger, distraction Lost productivity Low morale/employee turnover © Lorene F. Schaefer, Esq. www.WinWinHR.com
3.
Dispute Resolution Continuum Higher
Control Lower Control Lower Costs Higher Costs Parties Decide Outcome Neutral Decides Outcome Negotiation Mediation Arbitration Judge Jury Informal Formal © Lorene F. Schaefer, Esq. www.WinWinHR.com www.OneMediation.com Private Public
4.
What is Mediation?
Informal process that uses neutral, third-party to assist parties in finding mutually acceptable resolution Not an adjudication Mediator does not decide what is “fair” or “right” Mediator cannot and does not force settlement Mediator will seek concessions © Lorene F. Schaefer, Esq. www.WinWinHR.com
5.
Why Mediate? Private
& Confidential Participants Have Ownership of Process & Decisions Opportunity for Better Results Quicker Resolution Decreased Stress, Disruptions, & Distractions in the Workplace Creative Solutions to Problems © Lorene F. Schaefer, Esq. www.WinWinHR.com
6.
Selecting a Mediator Experienced
Employment Attorney Neutral & Trustworthy Flexibility of Styles Mediation Training & Experience Good Sense of Humor ©Lorene F. Schaefer, Esq. www.WinWinHR.com
7.
Preparation is Key
to Success Know Your Case (Best, Worse, Most Likely) Submit Good, Solid Pre- Mediation Brief or Have Telephone Call With Mediator Determine How You Will Present (Charts, Verbal) Agree on Who Will Say What in Opening & Joint Sessions Obtain Settlement Authority Outline Negotiation Strategy ©Lorene F. Schaefer, Esq. www.WinWinHR.com
8.
Negotiation Strategy Develop
a strategy but remain flexible. Will You Make First Offer? What Will It Be? Do You Want to Set the Expectations or Manage Them? Let the Negotiation Flow – Never Try to Short Circuit It How Will You Use Your Evidence In Mediation? “Back Pocket Approach” “Trickle” “Smoking Gun” ©Lorene F. Schaefer, Esq. www.WinWinHR.com
9.
A Special Word
About Settlement Authority Lawyers don’t settle cases, clients do Defining “Full Settlement Authority” Don’t forget possibilities other than $ Good faith negotiations Do you want to have to “phone home?” Apology? Letter of Reference? Retirement Party? ©Lorene F. Schaefer, Esq. www.WinWinHR.com
10.
What to Expect
in a Mediation Mediator’s Opening Comments Opening Comments of Attorneys & Participants Joint Discussion to Explore Issues & Ask Questions Caucus(es) – Separate Private Meeting(s) with Each Party Reconvened Joint Session(s) Resolution & Closure Though there is no set format, the following are typical phases ©Lorene F. Schaefer, Esq. www.WinWinHR.com
11.
Opening statement
– opportunity to speak and listen to other side without “filter” of lawyers. Listen, Listen, Listen – Opportunity to deal with emotional obstacles – “Day in Court” Speak directly, but politely – Avoid rude behavior Discuss from perspective of what reasonable fact finder likely to conclude vs “what really happened” Ask clarifying questions – but Respect, Respect, Respect Opening Statements & Joint Session ©Lorene F. Schaefer, Esq. www.WinWinHR.com
12.
Private Caucuses Be
Prepared – Mediator Likely Will Ask Client More Direct Questions Anticipate – “What is Your Settlement Authority?” Additional Fact Sharing Confidential Designations Use the Mediator as a Sounding Board for Negotiation Strategy ©Lorene F. Schaefer, Esq. www.WinWinHR.com
13.
“The Dance” &
Talking Numbers What motivates the decision maker(s) in the other room? Recognize the Mediation “Dance” – Don’t be Too Anxious to Negotiate $ – Allow “Day in Court” The Rule of Reason – Be Ready to Articulate Employer’s “Why” & Probe Employee’s “Why” Constantly Re-Evaluate Strengths & Weaknesses Determine Settlement Range and Value ©Lorene F. Schaefer, Esq. www.WinWinHR.com
14.
Documentation & Closing
the Deal Signed Term Sheet or Settlement Agreement ① Parties ② Claims ③ Timing of Performance ④ Release ⑤ Dismissal Pending Actions ⑥ Confidentiality ⑦ Agreement Not to Execute Any Existing Judgment ⑥ No Admission of Fault ⑦ Remedies for Breach ©Lorene F. Schaefer, Esq. www.WinWinHR.com
15.
Be Prepared –
Other Potential Terms Although not always included, the following terms are sometimes negotiated: Mutual Non-disparagement References Non-Compete Non-Solicit of Customers Non-Solicit of Employees Charitable Contributions No Re-Apply Joint Press Release $ Paid Over Time Outplacement Sensitivity Training Regret or Apology ©Lorene F. Schaefer, Esq. www.WinWinHR.com
16.
Resolved Congratulations!! ©Lorene F. Schaefer,
Esq. www.WinWinHR.com
17.
Resolved Follow-Up - Do
Not Give Up Mediation is a Process. Not an Event. Use Your Mediator!!! ©Lorene F. Schaefer, Esq. www.WinWinHR.com
18.
Thank You! My Blog:
WinWinHR.com @WinWinHR Lorene F. Schaefer, Esq. www.OneMediation.com Email: Lorene@WinWinHR.com
Download now