Conflict Resolution

Advanced Problem-Solving Strategies

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More evidence that the practice of law has changed in fundamental ways: At a panel presentation this week at the SCMA Employment Mediation Institute, Ann Kotlarski, who represents employers and Curt Surls, who represents employees, both agreed that they prefer to resolve employer-employee disputes without litigation if possible. Surls said that he always sends detailed demand letters setting forth the factual background his client has presented, as well as the legal basis for his client’s claims, before filing a complaint. These letters usually do not contain specific monetary demands, but  do include an invitation to mediate the dispute. Kotlarski also initiates attempts at early dispute resolution. She always calls the plaintiff’s attorney as soon as she gets a complaint or […]

At the employment law program mentioned in my previous post, we were honored to hear a talk from Phyllis Cheng, the director of the California Department of Fair Employment and Housing (“DFEH”). Ms. Cheng walked through the process of resolving employment claims in the department (outlined in the flow chart below). For cases not processed by issuing an immediate right to sue notice, note that the department offers numerous opportunities to steer those cases to a negotiated resolution (generally denoted by the smooth round-bordered boxes), as opposed to a judicially or administratively determined outcome (the sharp-edged boxes), and maintains a staff of 11 mediators for the purpose. In all, the number of cases resolved consensually far exceeds the number that […]

Is it possible for a mediator to show too much empathy? At a program SCMA put on last night which included a mock employment mediation, reaction in the room was divided in response to the demonstrator’s expressions of understanding of the employee’s grievances. Although a few in the audience felt that the mediator could have gone even further in commiserating with the employee’s feelings that the employer had not adequately accommodated her need for religious observances in the workplace, a fair number of others thought it was wrong for the mediator to display any sort of solidarity with the employee’s complaints. Those who objected to the mediator’s expressions of empathy thought this approach could threaten the mediator’s neutrality. They also […]

A recent case from the Court of Appeal in Florida illustrates the perils of confidentiality clauses in settlement agreements, but something more as well. Patrick Snay brought an age discrimination suit against a private school that did not renew his contract as headmaster, and settled the case for $80,000 plus $60,000 in attorneys’ fees. (According to footnote 5 of the opinion, it appears the settlement was accomplished by mediation.) So far, so good. The settlement agreement contained a strict confidentiality clause prohibiting the plaintiff from disclosing, directly or indirectly, any information whatsoever about the existence or terms of the agreement to anyone except professional advisers. But Snay’s daughter, who was a student at the school, and apparently had also suffered […]

What a shame, I told the participants in a mediation recently, that you people did not call me when this controversy started as a small, almost neighborly dispute, instead of waiting until it snowballed into a giant lawsuit. In this case, the plaintiff’s claimed damages had greatly escalated due to the delay in resolving the problem. That can happen in real estate or personal property disputes where a property might sit vacant or in deteriorating condition for a long time, and it can also happen in contractual disputes where the harm to one or both parties’ businesses increases by virtue of the continuance of controversy. It can happen in employment litigation when a party’s focus on the injustices of the […]