Attorney’s View of Taylor Swift Cross-Examination

The cross examination of Taylor Swift is a textbook example of good witness preparation and questionable questioning.

Ms. Swift consistently used the word “ass” not butt, or tush or rear end. There’s nothing cute about assault.  She used a vulgar term never associated with a cute toddler – a word that makes people squirm.
And it was not a playful pat, as with sports teammates, “He had a handful of my ass. I know it was him.” Ms. Swift carefully attacked the bad conduct, not the person, “I thought what he did was despicable.”  She did not say Mueller was despicable.

Sometimes, excellent attorneys, such as the fictional Perry Mason, do not question witnesses if there are no facts we want from the witness.  It is risky to argue one’s case through witnesses.  Mueller’s lawyer Gabe McFarland tried to argue through questions, which opened the door for a slap back from Ms. Swift.
For example, Attorney McFarland pointed out the front of Ms. Swift’s skirt in the photo was not lifted up.  Why?  “Because my ass is located in the back of my body,” Swift answered.  No doubt, her attorneys asked her that question before trial began.  McFarland would have been better off just pointing out the hemline to jurors in closing argument.

Attorney McFarland opened himself to another counterpunch when he noted that Swift was closer to the alleged perpetrator’s girlfriend than the perp.  Said Swift, “Yes, she did not have her hand on my ass.”
Attorney McFarland tried to point his finger at others.   He asked Swift if she were critical of her own bodyguard for not protecting her.  Again, Swift was well prepared.  I’m critical of your client sticking his hand under my skirt and grabbing my ass.”  Another chance to repeat her allegation that he grabbed her ass.

Best of all for Ms. Swift was the opportunity to jiu jitsu the blame for firing question. Attorney McFarland tried to blame Swift, the victim, for the consequences to the perpetrator of reporting bad conduct.  Swift flipped over the attorney and the alleged perp., “I am not going to allow your client to make me feel like it is any way my fault, because it isn’t . . . I am being blamed for the unfortunate events of his life that are a product of his decisions and not mine.” that answer shows expert coaching.   She accused the “client” Mueller of attacking her instead of Mueller’s attorney.  She kept the focus on Mueller and the simple allegation that he grabbed her ass.

I qualify the above by saying that I did not read the entire transcript. I’ve only seen reports of the cross examination. However, it sure sounds like Swift schooled Attorney McFarland, who, perhaps, should have quit asking questions sooner than he did.

Jeff Merrick, Attorney and Mediator

EEOC Settlements Last Quarter

Employer pays $150,000 for wanting one hair follicle instead of another.  What about the one-armed trucker?  A wellness plan sickened employer, and what’s the $1.9 million “Rosebud” mystery?  I report these stories plus summarize all 32 resolutions announced by the EEOC last quarter.

Let’s start with hair and religion.  The Old Testament forbids cutting scalp hair, believe the Nazirite sect of the Hebrew Israelite faith.  When a pre-employment screen required scalp hair follicles for drug testing, a faithful applicant offered his beard.  U.S. Steel subsidiary did not accommodate his request, revoked the job offer, and paid $150,000 to settle.

“EEOC supports” work wellness plans to “become healthier and lower health care costs.”  But, plans must follow the rules to avoid tripping over the Americans with Disabilities Act.  A Wisconsin employer’s plan shifted insurance costs to employee after she declined a medical examination required by the wellness program.  EEOC alleged employer retaliation.  After the case survived summary judgment, the employer ended it for $100,000.  Here’s a link to EEOC’s summary of the regulations and the actual wellness plan regs.

As he died, Charles Foster Kane mysteriously whispered “Rosebud” to begin Citizen Kane.  It was no mystery, alleged the EEOC, why customers saw few, if any, African-Americans in 13 Chicagoland Italian Rosebud Restaurants.  The four-year consent decree to resolve race discrimination in hiring includes hiring goals, reports to the EEOC plus $1.9 million dollars.

The American Dental Association beat Rosebud for the highest payout last quarter:  $1.95 million to its former chief legal counsel and HR director for complaining to the board about violations of antidiscrimination laws.  Curiously, EEOC included the employer’s denial in its press release.  (A term of the settlement?)  If you need language to explain why an employer is “pleased” to pay nearly $2 million, here’s the link.  “Amicable,” “regrets,” “dedicated and loyal employees”, “differences arose . . . .”

One-armed truckers have rights too.  Fuel transport company believed it could not accommodate him.  Nevertheless, it paid $65,000 because it did not engage in the interactive process with the man who had been driving truck more than 20 years with one arm.

“Speak English,” say bosses.  Requiring “English only” in the workplace without a business reason constitutes National Origin discrimination, alleged the EEOC.  It cost a pizzeria $50,000 and a consent decree requiring policies, training and procedures.  Elsewhere, a manufacturer paid $475,000 after firing 22 employees for lacking sufficient English skills.

I list the other resolutions below.  Often, EEOC settlements appear low compared to settlements negotiated by experienced employment law attorneys.  That’s likely due to many of these individuals not having personal attorneys.  Also, I am not reporting the other consideration EEOC obtains, including multi-year agreements for training, reporting and other nonmonetary terms.

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AGE DISCRIMINATION.  College passed over 66-year-old adjunct professor for full time work.  Instead, it hired younger and less-experienced candidates. $60,000
DISABILITY DISCRIMINATION.  Employer stuck to its leave policy, even when employees needed more leave for cancer or surgeries.  It did not accommodate restrictions and terminated employees.  The ADA trumps employer leave policies, not vice versa.  Settlement includes an extra $200,000 for unknown victims.

$600,000 –

$800,000

Employer asked invasive questions about employee’s ability to perform while he was going through cancer treatment.  Then, it terminated him. $380,000
Kidney transplant medication weakened employee’s immune system.  First time, employer accommodated.  Second time, it refused accommodation and terminated him. $179,576
After five months on the job, employee was promoted from temp to regular employment contingent upon passing pre-employment physical.  Employer rescinded offer after learning of medications, claiming potential side effects were unacceptable and despite employee’s doctor saying she’s good to work. $106,000
Employer rescinded job offer after learning of prescription drug use.  Employee offered proof the medication did not impair her and offered to try different medication.  Employer did not budge. $45,000
Give the woman a stool, said the EEOC.  After returning from medical leave, employee needed to sit for 15 minutes each hour while working at the “Piercing Pagoda” kiosk.  Employer demanded standing every working minute. $30,000
NATIONAL ORIGIN AND COLOR.  Calling Ms. Velazquez, “negra” and the “chocolate one” and opining that “Mexicans are stupid,” was, indeed, hostile. $15,000
RACE DISCRIMINATION.  Also hostile was the Sealy manufacturing plant, which featured a noose, KKK hood, and racial epithets and jokes.  A written anti-harassment policy is not enough; Employer must act fast and appropriately. $175,000
Houston company employees also used a hood as part of their harassment of African-American.  Employer’s response was NOT appropriate.  It told employee it was just a joke, and he should declare under penalty of perjury the employer responded adequately.  When employee refused to sign, employer’s next response was to fire employee. $120,000
Cabinetmaker fired two African-Americans for allegedly falsifying one of their timecards.  However, the evidence was a white co-worker was responsible, and he kept working. $60,000
Racist name calling, racial epithets, racial jokes, physical threats.  Employer learned of at least some of it, but failed to stop the harassment. $35,000
RELIGIOUS DISCRIMINATION.  Employers must seek to accommodate Rastafarian dreadlocks.  Third-party employer asked Rasta-man to cut dreds for client. $30,000
PREGNANCY DISCRIMINATION.  Employer did not promote pregnant employee because it feared she could not handle a manager’s workload.  Default judgment. $118,483
After employer offered job, applicant asked about maternity benefits because she was pregnant.  Employer rescinded offer. $100,000
Christian Camp demoted employee to “less demanding” job after learning she had gestational diabetes.  When she questioned authority, camp fired her and sued her. $70,000
SEX DISCRIMINATION.  County paid female engineer less than male engineers.  County agreed to (1) increase her salary by $24,723, (2) hire consultants on compensation and anti-discrimination plus (3) pay . . . $139,633
Milk manufacturer repeatedly promoted men instead of woman with decades of experience. $84,750
Company provides educational services to students with developmental and learning disabilities.  Its CEO offered woman a job and immediately asked her out to party on a date.  She declined.  He pulled the job offer.  Consent decree requires CEO to attend anti-discrimination education annually with the other employees. $57,000
“This is a man’s job.”  “Not suitable for woman.”  “The work is difficult.”  Staffing agency refused to interview woman at job fair for shipping and receiving position with employer.  Records showed 54 of 55 applicants agency referred to client were men. $50,000
SEXUAL HARASSMANT.  Georgia Tex-Mex restaurant co-owner showed servers sexual pictures and videos, among other harassment.  Restaurant now closed. $20,000
RETALIATION.  Car dealer informed African-American, who required dialysis, he would be transferred to a newly-created position.  Employee was well enough to continue his existing job.  He resisted by asking to keep his current job and saying, “get a white guy” to do the newly created job.  Company fired him. $65,000
Employer refused to rehire five employees who had opposed sexual harassment and participated in EEOC investigation against its client. $62,500
Black employee who worked for third-party staffing agency thought he was passed over for a job placement because of his race.  He complained.  Within days, the agency fired him. $45,000
County jail employee resisted advances from his male manager.  Weeks after he reported groping, employer fired him. $35,000

(c) 2017 by Jeff Merrick, Attorney & Mediator

@JeffreyMerrick

 

Voir Dire Tip For Your Next Trial

When done right, voir dire (or jury deselection) is a facilitated discussion.  Inadvertently, I learned some tips on voir dire by attending a seminar for mediators entitled “Five Star Facilitation.”   One tip is so effective and practical that trial lawyers will use it the very next time they talk with potential jurors.

How can attorneys generate fruitful discussions and elicit honest self-disclosures from potential jurors in front of strangers in a limited period of time?

Attorneys’ topics for discussion with potential jurors vary depending upon the client and case.  Sometimes, they include the  civil justice system, generally; how much money it will take to compensate for the loss, or personal responsibility.  Burdens of proof and how to tell when people lie also arise.

By contrast, facilitation techniques are subject neutral.

  • Establish rapport and an atmosphere of openness through body language, a conversational tone of voice, and meeting the group as equals.  Do not convey a sense of self-importance or superiority.  You’re there to help them with their decisions.
  • Be clear about ground rules.  For example, invite contrary opinions by eliciting agreement from the group to be respectful when disagreeing.
  • Open-ended questions, of course.
  • Follow up with more open-ended questions:  What makes you say that?  How do you feel about that?  Not sure I understand, can you say more about that?
  • Use mediator techniques including validation, empathy, clarification and summarizing / reframing.
  • Capture key concepts on your flipchart or other means.

Now, is the time to use a clever facilitator technique: the five-finger hand raise.

Your flipchart could include comments such as “Too many lawsuits.”   In the past, I would ask, “Raise your hand if you agree?” “Disagree?”  Sometimes, jurors would indicate “so-so” by raising a fluttering hand with a grimace.

Instead of asking for a binary show of hands, give them the scale from 1 to 5:  5 fingers if you agree strongly, 4 if you agree, 3 if neutral, 2 if disagree, 1 if disagree strongly.  They have 5 fingers; employ them.  Then, you can identify with whom to follow up.

“Yes” or “No” versus the scale of 1 to 5.   That’s the tip.

(Subscribe in the right column, if you like.)

(c) 2017, by Jeff Merrick, Attorney & Mediator

@JeffreyMerrick

 

Disco-Mediation: Tool for Smaller Claims and Shallow Pockets

“I never let the parties see each other, much less be in the same room,” said one of the best settlement judges.  Separation avoids the risk of a blow up.  It also limits the possibilities of mediation.  Sometimes, same-room mediation sessions offer benefits that outweigh risks, including to combine discovery with mediation or Disco-Mediation.SM

Some lawsuits do not justify the expense of depositions, motion practice, and Lordy, not trial.  Recently, I mediated such a case, in which the amount in dispute was small and an uninsured defendant did not have much money.

Construction contractor sued start-up business for unpaid work.  The parties disputed the scope of the project and the amount due.  The start-up had little money, and the amount in dispute was less than the cost of full-blown litigation.

Joint Fact-Finding Session

I spoke with each attorney separately a week before the mediation to discuss options.  They agreed to start the mediation with a joint session, during which the lawyers would be quiet, and I would talk with the parties about their relationship, what happened and other key facts.

The lawyers agreed this was the most efficient way to (1) identify which facts, actually, were disputed, (2) “fill in the blanks” of information each lacked, and (3) evaluate credibility.  Lawyers know getting this type of information, otherwise, would cost thousands to prepare for two depositions, take the depositions, and pay the court reporter.

Also, the joint session saved about one-hour of mediation time because I did not have to repeat either my introduction or each side’s version of events to each other.

Aren’t tensions high with people in the same room? 

Yes, people in conflict are not comfortable sharing a room.  But remember, it is worse in trial.  We began by agreeing on ground rules and reviewing their joint goals for the day, which included putting this matter behind them as efficiently as possible.

Next, I asked one of them, simply, “How did you get acquainted?”

How one asks questions can either increase or decrease tensions.  Compare open questions to closed and accusatory questions.  That’s why we gagged the attorneys.

The parties became testy at times, as expected.  That is okay.  A party’s words and sighs convey much more information than a summary of a party’s words from the mouth of a mediator.  A skilled mediator will acknowledge the nonverbal communication and use the opportunity to surface other issues.  In many cases, more than the legal merits are at issue, including feelings of betrayal, disrespect, or lack of trust.  Surfacing and addressing those issues can be the key to settlement.  Sometimes, people need an emotional release before they will sign a legal release of claims.  In this case, I was able to validate in a neutral way the emotional expressions and use them to move the process forward.

The lawyers and I had planned to split up after the joint fact-finding session.  Before we did, I asked each lawyer in turn, “Are there any more facts you need to counsel your client?”  There were, and we obtained that information.

Separate-Room Shuttle of Offers, Information and Arguments

Splitting up serves several purposes.  First, it provides the parties an emotional break.  Second, the attorneys needed privacy to speak candidly with their clients.  Third, in a safe place, each party can reflect on their options for resolution.  In separate rooms, I helped them understand their own interests and the other side’s issues.

We made good progress.  When it became clear there would be no lump-sum settlement, the parties needed to be creative about how to structure and secure payments.  At one point, negotiations began to stall because each side questioned the credibility of the other side.  The attorneys held different beliefs about what was possible.  Frankly, one side began to wonder if I were naïve to think the other side might possibly be truthful.

Joint Session With Lawyers Only

I proposed the attorneys meet together with me and without the clients to work through the next phase.

The attorneys sat together on one side of the table with me on the other side.  They talked with each other face-to-face.  The skeptical attorney got her questions answered directly, and she could make her own, unfiltered, credibility determinations.  Again, there was a bit of testiness.  However, I helped them “clear the air” of misperceptions about past positions.  Had we remained in separate rooms, some of these “side issues” either could have blocked resolution or not been resolved.  If not resolved, suspicions would damage the attorneys’ relationship on future cases.

Together, the attorneys reached a common understanding on what was possible.  They agreed upon deal points to recommend to their clients.

Conclusion

One size does NOT fit all.  Joint sessions can be an efficient and effective way to resolve some disputes.  For other disputes, separate-room mediation is a must.  The mediator should always talk in advance with the attorneys to discuss process options and agree on an approach that makes sense.

For smaller claims and defendants with modest means, a joint fact-finding session or Disco-MediationSM can be an attractive cost-saving tool.

Subscribe in the right column, if you like.

(c) 2017 by Jeff Merrick, Attorney & Mediator

@JeffreyMerrick

My Bill for Small Claims Court Fairness Becomes Law

Today, Governor Brown signed what remained of my bill to reform small claims court.  Thank you to all who supported the bill.

Simply, it permits one spouse to represent both in small claims court. Small claims court, which includes claims up to $10,000, is where creditors take our most vulnerable people, many of whom are a paycheck away from homelessness.  The new law is important for the following reasons:

  • One spouse can avoid court and work to earn the money they desperately need.
  • One spouse may stay home and babysit the children.
  • There will be no ambiguity and no opportunity for mischief. When one spouse travels to court to answer a joint debt, the creditor may not default the other spouse.
  • It moves the needle toward fairness in a court where creditors may be represented by seasoned, paid professionals; yet, creditors may not be represented by anyone.  People owning money still may not use lawyers or other pros, but their husband or wife may appear on their behalf.

You can find the bill here: HB 2734 (2017)

Jeff Merrick

De-escalating Conflict Through Respectful Communication: 11 Quotations to keep us on track.

De-escalation of conflict is important in mediation and in society.  We can do much simply by treating respectfully those with whom disagree.

It is hard.  Often, I want to strike back verbally when I read words that run counter to my sense of justice and decency.   However, today’s tweet by the pope reminded me that vitriol is not a tool of successful peacemakers.  I gathered some quotations to remind us to take the high road.  Here they are.

1. “I encourage everyone to engage in constructive forms of communication that reject prejudice towards others and foster hope and trust today.”
Pope Francis tweet 5/28/2017

2. Darkness cannot drive out darkness; only light can do that.  Hate cannot drive out hate; only love can do that.   – Martin Luther King, Jr.

3. “An eye for an eye will only make the whole world blind.”  –Mahatma Gandhi

4. “Don’t talk unless you can improve the silence.”  – Jorge Luis Borges

5. “The words of the tongue should have three gatekeepers: Is it true? Is it kind? Is it necessary?” – Arab proverb

Dalai Lama

6. “Conflict cannot survive without your participation.” — Wayne Dyer

7. “We must work to resolve conflicts in a spirit of reconciliation and always keep in mind the interests of others.  We cannot destroy our neighbors!  We cannot ignore their interests.” – Dalai Lama

8. “Sometimes, it’s better to be kind than to be right.  We do not need an intelligent mind that speaks, but a patient heart that listens.  You will not be punished for your anger; you will be punished for by your anger.”  – Buddha.

9. “Watch your thought, they become words.  Watch your words, they become actions.  Watch your actions, they become habits.” –Laozi

10. “It is so easy to break down and destroy.”  The heroes are those who make peace and build. –Nelson Mandela.

11. “Let there be peace on earth
And let it begin with me.”  – Song by Jill Jackson Miller and Sy Miller

Let us all be the change we seek.

Jeff Merrick.

Testimony in Support of Reform to Small Claims Mediation

Chair Prozanski and members of the committee.

Background

My name is Jeff Merrick.  Since 2012, I have served as a volunteer mediator in small claims court for Clackamas and Multnomah Counties.

During that 5 years and over 100 cases, I’ve learned that so-called “Small Claims” – with values up to $10,000 – have huge consequences for thousands of people each year.  The court summons our most vulnerable neighbors to mediation and trial in small claims court to answer for alleged debts.  Occasionally, it is obvious that small claims court is a step toward homelessness because a judgment, followed by wage garnishment, will not leave enough money to pay rent.

On the other side, people of modest means sue in small claims court when they feel harmed or cheated, and they need an efficient, low-cost process.

I proposed a few reforms, only one of which is before you today.

What Does HB 2734-A do?

HB 2734-A allows one spouse to represent both in small claims court.  It passed the House 59-0. 

Why is it a Good Law?

1.  Both spouses are unnecessary.

Typically, one spouse is enough.  Spouses can discuss between themselves how to defend or pursue a claim in mediation or trial and have one person act on behalf of both.

2.  Fairness demands that one spouse may represent the other.

Often, paid professional agents represent creditors in small claims courts.  The principals do not need to appear.  Collection agents suffice.

It is only fair to authorize one spouse to represent the other. The other spouse should not need to appear.

3.  Requiring attendance of both spouses can be a hardship.

Too often, people in small claims court live paycheck-to-paycheck.  They need every dime.  When both spouses work, it is a hardship to pull both from work to attend mediation on one day and trial on another day if it does not settle.

Often, people have child care issues.  Allowing one spouse to take care of children is the right thing to do.

4.  Some collection agents seek default if both spouses do not appear for mediation or trial.

Let’s take an example.

The family has a delinquent medical bill from a disabled child.  The court summons husband and wife to mediation.  Wife stays home with the disabled child.  Husband attends to address the claim and work out a solution.

Some collection agents will seek an order of default against the wife.

How small claims judges deal with such default motions varies.

There should be no ambiguity and no opportunity for mischief.  When one spouse appears to answer a joint debt that should be sufficient to avoid a default.  Period.  No question.

Conclusion

HB 2734-A is a common-sense improvement, as the 59-0 vote indicates.

Please vote to make it the law of Oregon.

Thank you.

Jeff Merrick, Attorney and Mediator

Frohmayer Award for Public Service

Last night was the Fifteenth Annual Frohmayer Award for Public Service.

Allyson and I sure missed seeing Dave Frohmayer, who was a smart, compassionate public citizen who passed away in 2015.  While Attorney General, “Dave” recruited me to Oregon for a one-year job with the Oregon Department of Justice in 1984.  When he served as President of Oregon’s Law School, he was a mentor to Allyson.

Last night’s recipient was Judge Waller, who is very deserving of the honor.

Judge Waller receives Frohmayer Award for Public Service

Please Support Improvements to Small Claims Mediation and Trial

Oregon Senate Chamber

Small claims court is supposed to be a fair way to achieve rough justice between two parties who represent themselves.  Oregon laws have been proposed to restore that goal and improve fairness.  This post explains how the laws can help the process and how you can help enact the laws.

Level the Playing Field

“Small claims” – up to $10,000 – can have huge consequences.   Many people summoned to court barely make ends meet.  A judgment and garnishment can drain take-home pay so much that people cannot pay rent, leading to eviction and homelessness.

These people cannot afford attorneys to represent them.  In theory, that’s not a problem because attorneys are not allowed in small claims court for either side.  BUT, there’s a loophole.  Collection agents can pursue claims on behalf of others, even when they do not own the claim.  Collection agents are in court every day and become as adept at mediating and presenting claims as any attorney.  In effect, creditors have “an attorney” against someone who might have zero acquaintance with legal proceedings.

In theory, even when it is pro vs. newbie, the judge should ensure that justice is done.  BUT, more often than not, the parties never get to a judge.  Some counties, including Multnomah and Clackamas, summon people to mediation.  Parties may not see the judge unless mediation fails to settle the lawsuit.

Mediation has many wonderful benefits.  I’ve mediated a ton of cases.  The opportunity to exchange information and negotiate a payment plan, for example, is great.  Other times, mediation is less-than-fair because the pro states positions with authority, and the newbie does not have the experience, knowledge or, frankly, the smarts to question what the pro states.  Ethics prevent mediators from taking sides.  Mediators cannot ensure a just settlement.  Simplified, a mediator’s job is to make sure the process is voluntary, without bullying, for example.  If a professional negotiator makes a sharp bargain, that’s his or her job.  By contrast, would a judge permit the continuation of 33% interest on a 200,000-mile car that broke down within 60 days?  Maybe not.

More importantly, when the alleged debtor truly disputes the bill, the professional negotiator often claims he or she does not have the client’s authority to negotiate.  (Q. “Can you budge on the amount due or interest?”  A. “No.”)  And when the consumer thinks the quality of work or product was subpar or constituted malpractice, the clinic or true party is not in the room to listen and evaluate the concern.  I truly believe if some charitable organizations who use collection agents WERE in the room, sometimes, they would act pursuant to their mission and do charity.  Would they force a garnishment to pay a $1,500 debt when it might result in eviction and homelessness to a middle-aged couple?

No Secret Courts / Secret Parties

Who are the faceless entities using professional negotiators with no authority to actually negotiate?  Who are the repeat players?  Can a newspaper do an expose’ on a business or charity?  No, because the claims are pursued in the name of the collection agent.  In every lawsuit other than small claims, the claim must proceed in the name of the “real party in interest.”  It is time to clarify that small claims, too, must, be pursued in the name of the “real party in interest.”

Senator Frederick

Senator Lew Frederick and Representative Mitch Greenlick introduced bills to address these issues.  SB 358 and HB 2734 would require creditors and others to file suit in their own names.  The amendments also require the actual party to show up for mediation and trial, closing the loophole that permits only one side the benefits of a professional representation in court.

Representative Greenlick

One Spouse is Enough.

The law addresses another important issue.  Often, spouses are jointly responsible for a debt or jointly want to sue someone.  Often, they have child care issues or cannot afford to take time from work.  The proposed law permits one spouse to appear on behalf of both.  This seems like a common sense clarification.

Legal Rate of Interest.

The “legal rate of interest” in Oregon is 9% per year.  Many who volunteer to help in small claims court see how that can crush people, especially when creditors wait several years to file their claim.  For example, a young person who moved frequently never learned that her medical insurance had not paid the medical bill in full until she received a lawsuit 5 years later.  By then, her $900 balance had ballooned to $1,385.

Federal courts use a market rate standard.  SB 362 and HB 2733 would make the legal rate of interest the greater of 1% or the market rate.

How you can support these reforms.  

  1. Thank Senator Frederick and Representative Greenlick.
  2. Share your stories with them and offer to testify if there is a hearing.
  3. Contact members of the assigned committees, state your support, and ask them to hold a hearing on the bills. The “SB”and “HB” numbers above will take you to the Legislative Assembly’s page that lists committee members.  Subscribe at the top to receive notice if the committees schedule hearings, which often occur on very short notice.

Update – Hearing Set for 3/2 at 1:00 p.m.

The House Committee on the Judiciary scheduled a hearing on HB 2733 and 2734 for March 2, 2017 at 1:00 pm in Hearing Room 343.  

Please share your input on one or both bills in writing or in person or both.  Why is it a needed?  What could improve it?

Submitting written materials is easy.  Just write your thoughts and send them to hjud.exhibits@oregonlegislature.gov. They do the rest.  No need to make many copies.

Testifying is a very fulfilling way to perform a civic duty; and it is easy.  Just go to Salem, sign up, and speak to your representatives face-to-face.  The state encourages and coaches us on how to testify here.

See you in Salem!

Jeff Merrick, Mediator

Trauma Informed Mediation: Helping Distressed People in Mediation.

brain reptileMediation is a people occupation.  The best mediators quickly evaluate who is in the room and adapt.  Communication with cool, seasoned pros must differ from our interaction with people who are under the influence of significant distress. Yesterday, I attended a three-hour seminar on the topic of Trauma Informed Mediation presented by Rebecca Bloomfield.  This post covers some of the take-home points.

“Trauma” encompasses a lot when defined as “the result of exposure to an inescapably stressful event that overwhelms a person’s coping mechanisms.”  Emotional abuse, domestic violence, war, disabling injury, witnessing awful events, workplace exploitation, spiritual abuse, and litigation are among the causes of trauma.  What is or is not “trauma” is subjective, based upon the person’s coping mechanism.  For a person with money, a lawsuit involving $3,000 might be an annoyance; for another, it is a threat of homelessness when wage garnishment will not leave enough money for rent.

Trauma has three phases: acute during the first 60 days, chronic after 60 days and until the third stage – integration – begins.  Integration occurs when the person no longer feels the trauma as their primary focus.  The trauma remains part of that person, but it under is control unless triggered.

For people in lawsuits who are not experienced litigants, there’s a fair chance he or she is suffering some level of acute trauma from the litigation itself.  Sometimes, it is easy to see with outbursts of anger, tears, sweat, etc.  Other times it is not so easy to identify a trauma-affected person who presents as passive and compliant.  So, mediators must tread cautiously to avoid triggering the unreasoning part of the brain, which Ms. Bloomfield called “flipping your lid.”

“Flipping your lid” is a physiological response.  Normally, one’s limbic and “reptilian” regions of the brain are safely tucked under the cerebral cortex.  Our prefrontal cortex controls our reasoning.  When one experiences or re-experiences a trauma, hormones temporarily disable the reasoning portion of the brain, and we flip to reptile, reactionary mode.

So, the questions become, (1) How do mediators avoid triggering the reptile mode, and (2) If someone suffers distress, how can mediators respond in a way that helps and not make things worse?

The answers vary depending on the parties.  However, some universal precautions make sense.

At the start, make people comfortable.  Give them options where to sit and a clear path to the door. Give them freedom to take care of their own needs: stand, sit, and take breaks for any purpose.  Make it clear that this process is voluntary and they are free to leave.

Give the parties a roadmap of the mediation process plus clear behavior expectations and boundaries. When people know what is coming, it is easier for them to stay grounded and not flip their lids.

If a person breaks down: Do not touch them or say something like “get a grip.”  Do not raise your voice to meet their raised voice.  Instead, use low tones of voice to assure them they are safe and will be okay. Take a break and let the hormones metabolize.  Ask the person what he or she needs and wants.

I found Ms. Bloomfield’s seminar on Trauma Informed Mediation very helpful, and it reinforced many of the tools I use regardless of whether I think a person is somewhat fragile or relatively strong.  With everyone, mediators should be mindful of the parties’ needs, provide a clear roadmap and expectations, check in frequently about their feelings and then validate and normalize their feelings.

Our goal as mediators is to help the parties work through their issues and make reasoned decisions.  An obvious precondition is a state of mind capable of thinking clearly.

Jeff Merrick, Mediator

© 2016

EEOC Settlements Last Quarter

Lowe's Logo

Was $7.6 million for near slavery the largest resolution announced by the Equal Employment Opportunity Commission last quarter? No. A strictly enforced medical leave policy cost Lowe’s $8.6 million. A 45-year-old case settles another chapter, plus things that caught my eye and a recap of all resolutions.

From its Beverly Hills headquarters, Global Horizons, Inc. connects laborers with work around the world. When agribusiness in Washington and Hawai’i needed farmworkers, Global Horizons matched them with people from Thailand.  A match.com for business?  Well, civil and criminal prosecutors alleged GH, Inc. made these people believe that if they discontinued working for the employer, they could be arrested and deported. In case words were not enough to restrain them, GH retained their passports, too.  To keep people working fast, they’d strike one on the head with a cane or otherwise use fear, intimidation, humiliation and shame, according to Judge Shea in the Washington case, where he awarded $7,658,500 in compensatory and punitive damages.

National retailer Lowe’s paid $8.6 million to settle with the EEOC for firing thousands of workers with disabilities whose leave exceeded Lowe’s maximum leave policy. I’ve reported on this before: compliance with state and federal leave laws does not equal compliance with The Americans with Disabilities Act. The employer must make individual determinations and provide reasonable accommodations.

Male supervisor harassed lesbian:  “I want to turn you back into a woman;” “You would look good in a dress.”   Shortly after she complained, she was fired. $20,000 of the $202,200 settlement for sex discrimination to be donated to “Human Rights Campaign Foundation Workplace Equality Program.”  EEOC considers this a landmark early case of sexual orientation discrimination.

Intellectual Disability. The 26-year old had been cleaning up the amusement park and restaurant for four years. The employer changed the clock in procedure, and the employee couldn’t get it because he had a traumatic brain injury as a kid. EEOC charged the employer could have and should have accommodated him. $20,000.

Targeted recruiting cost a couple of employers.

Lawler Foods in Texas wanted Hispanics. It used word-of-mouth recruiting and advertised its Spanish-language preference. EEOC charged discrimination against African-American and non-Hispanic applicants, and the employer paid over $1 million to settle.

A Newark firm also used word-of-mouth recruiting. Plus it falsely told African-American applicants that no positions were open when, in fact they were hiring. The consent decree orders payment of $350,000 plus imposes affirmative action in recruiting black candidates and giving priority in hiring to those whom the EEOC identified as having been harmed, among other things.

In 1971, the United States sued a union and apprentice program alleging they did not want African-Americans and Hispanics to become sheet metal workers. The names of the prosecuting entities changed, as did some of the defendants.  Last quarter, they settled claims arising between 1991 and 2002 for $1,650,000.

Failure to retain applications and other documents relating to the hiring process violates 29 C.F.R. §1602.14 and the ADA. Employment agency violated that provision and it failed to hire an applicant because she disclosed her disability. The expert employer paid $30,000.

New Prime Trucking Inc. will pay $3.1 million for pattern and practice discrimination against women.  The story begins in 2004, when Prime was liable for harassment of a woman by a male truck driver trainer. In response, Prime adopted a policy of same-sex trainers.  Because Prime had so few women trainers, women had to wait, sometimes up to 18 months for training, meaning most women were denied employment. Employer paid lead plaintiff $250,000 plus $2.8 million for 63 other women.

Other settlements follow.

Sexual Harassment: Funeral Home Manager tried to enliven the working environment with sexual innuendo, unwanted touching, porn pictures, grabbing breasts and buttocks, etc. $85,000
Maine farm allowed work environment with groping, sexual comments, and requests for sex. One woman who said, “No,” was subjected to increased harassment. $120,000
24-year-old man secretly videotaped younger male co-workers in men’s bathroom. When one victim complained, manager cut his hours, demoted him, and issued excessive and unwarranted discipline. $27,500
National Origin: North Dakota oilfield company harassed a Filipino-American, though the manager seemed confused on what is the correct term to degrade Filipinos. He tried, “non-white motherf’r,” “spic,” “ni***r,” and “ape.” $250,000
Employer working on a federal contract allegedly violated the Civil Rights Act AND Executive Order 11246 by creating a hostile work environment for Hispanic employees. $100,000
Race:  Warning a job applicant that the manager does not want African-Americans constitutes actionable opposition to discriminatory employment practices.   The employer said it fired the two African-American “snitches” because their statement to the job candidate was a lie. $90,000
African-American manager at nursing home missed a single day of work and was fired, despite letting employer know in advance. In the context of other firings, it seemed like a plan to eliminate African-Americans from management $40,000
Years of racial slurs, which continued despite complaints to management. Fired after complaining. $40,000
Racial and ethnic slurs. $40,000
Moving company fired woman just hours after she complained about racial harassment. $30,000
SEX:  EEOC alleged sex discrimination when worker was fired shortly after she informed co-workers she planned transition from male to female. She worked for a contractor with a college. The college asked for her removal. The contractor paid. $140,000
Coca-Cola Bottling of Mobile refused to hire a woman for warehouse work. $35,000
Pregnancy discrimination with good evidence: Audiotape of owner saying his whiskey bar customers would be offended if he allowed a pregnant woman behind the bar. $66,000
RN / charge nurse requested to lift no more than 25 pounds following surgery relating to reproductive system impairment. EEOC noted employer had accommodated non-pregnant employees with similar lifting restrictions. Here, employer told employee to reapply for work after she gave birth and no longer had restrictions, which she did. Still, employer refused to rehire her. $132,000
Pregnant EMT wanted the same accommodation on lifting the company gives workers with bad backs –a power cot to lift patients.   Accommodation denied. $55,000
Employee informed boss of her pregnancy. He fired her immediately after she trained a new employee. $45,000
ADA / GINA (Genetic Information Discrimination act).     Asking questions relating to an applicant’s family medical history, medical condition and disability prior to hire violates federal law. Questionnaires impacted 1,100 job applicants. $329,640
Overbroad release of medical records for fitness-for-duty exam and questionnaire seeking family medical history violated GINA and ADA.   Also, employer fired applicant when he objected to breadth of release. Employer blamed third-party vendor who performed medical examinations.   Employer paid. $87,000
Disability: Employee underwent coronary bypass surgery and notified employer he was cleared to return to work, initially for half days. Employer notified employee he was fired. $187,000
Indianapolis printing company fired two workers with HIV.   Also fired former HR employee for opposing (other) illegal practices. $110,000
Commissioned salesperson had odd symptoms about three months after starting work for auto dealership. She provided medical note to be off work until they could confirm the tentative diagnosis of multiple sclerosis. Liberty Chrysler Dealerships exercised its freedom to break the law and fire her. $50,000
Seizure disorder caused medical leave. Neurologist cleared worker’s return to work. At first, employer demanded that he no longer have the condition. Then, it required him to take controlling meds under observation of certain others at work.   Said EEOC, “An employer cannot single out an employee who has a disability and impose a unique and over-protective rule on that person as a condition of employment. $33,000
Kroger accommodated stock person’s bad back with work as a cashier.   When Kroger discovered the condition was permanent, it fired her. $33,000
AGE: Milpitas, CA hired the 39 year old over better-qualified guys over 50. $140,000
Maui County police hired younger, less qualified officers and commented on the applicant’s age during the interview $24,000

Jeff Merrick, Mediator

(C) 2016 by Jeff Merrick

Still Time to Talk Before Suing Your Doctor? Oregon Law halts the Statute of Limitations for Some Situations.

Joan and Melissa Rivers settlement talks helped all parties move forward.
Joan and Melissa Rivers settlement talks helped all parties move forward.

Caller:  I think my doctor or hospital committed malpractice.

Attorney:  When where you treated, and when did you first think there might be malpractice?

Caller:  2014, sometime.  I think July or August.

With Oregon’s two-year statute of limitations,* what’s an attorney to do?  There’s almost no way to properly investigate such a claim in about one month, assuming the caller was correct about “July or August.”

Attorney options include:  (1) Say, “I cannot help you.”  (2) Ask the health care provider for a tolling agreement.  (3) Quickly file a lawsuit and qualify it under ORCP 7(c)(4) as a protective filing.  (4) Another answer, if the case is serious enough, is to file a “Notice of Adverse Health Incident” with the Oregon Patient Safety Commission.

The notice tolls the statute of limitation for 180 days to give the parties time to discuss, mediate, and resolve the situation.  2013 Or. Laws Chap 5, §7(2) (published after ORS 31.250).

The topic is timely because Oregon’s law controlling Discussion, Mediation and Resolution of Adverse Health Care Incidents is approaching its second anniversary.  The law applies to incidents that occur on or after July 1, 2014.  So, now, the tolling provision is in play.

The law applies only to “Adverse Health Care Incidents,” defined as, “an objective, definable and unanticipated consequence of patient care that is usually preventable and results in the death of or serious physical injury to the patient.”  If there is any doubt that the injury is “serious,” then cautious attorneys will obtain a tolling agreement or commence a lawsuit.

What’s the process?

1.  Notice of Adverse Health Incident.

A patient, health care provider, health care facility and certain others file the notice with the Oregon Patient Safety Commission.

  • The notice IS NOT considered a claim that providers, otherwise, would need to report to licensing agencies.
  • The notice DOES constitute tort claims notice required by ORS 30.275.

Below are links to the:

2.  Early Discussion.

The parties may engage in discussions – but do not have to – over a full range of topics, including what happened; expressions of regret or apology; steps to prevent recurrence; and monetary compensation. If compensation is offered, then the offer must advise the patient of his or her right to seek legal advice. OAR 325-035-0015(8).

Although these discussions are confidential and not admissible as evidence, there is a confidentiality loophole.  A party may try to admit a statement from the “early discussion” that contradicts a statement made at trial or arbitration.  To avoid the confidentiality loophole, people may want to move the next step, mediation, before sitting down to talk.

3.  Mediation.

The Oregon Patient Safety Commission oversees the Early Discussion and Resolution program.  It maintains a roster of mediators who have met the legal standards.  (I’m on their panel.)  In addition to other qualifications, we spent two days learning or reinforcing what we knew about the interests of all parties to health care mediations.

Too often, I believe, both patient and provider attorneys focus so much on protecting their clients and winning that they do not fully appreciate (or feel handcuffed from addressing) the emotional consequences of adverse health care events.  When a human being devoted to providing care inadvertently causes serious injury or death, he or she is devastated.  Depression causing too-early retirement, substance abuse and suicide has occurred.  For the patient and family, the last thing they want is drawn-out litigation that can feel de-humanizing because of demands for confidential information and perceived gamesmanship, which they believe is irrelevant to what happened and to fair compensation.

If an adverse health care event occurs, file the notice, start talking, and see if everyone can get answers and move forward without stacking a couple of years of additional emotional pain on all those involved.

4.  Report Back to Oregon Patient Safety Commission.

Parties should report their results to the Oregon Patient Safety Commission.  If not, OPSC will reach out to the parties after 180 days.

Conclusion.

When a person dies or suffers an unanticipated serious injury at the hands of a health care provider, one option to get answers and resolve possible claims is Early Discussion and Resolution.  I encourage people to consider whether the process makes sense for themselves or their clients.

Jeff Merrick, Mediator

© 2016 by Jeff Merrick

*Disclaimer:  Many time limitations apply in Oregon, from 180 days to 10 years.  Two years applies only to some.  Contact a lawyer immediately if you think you have a claim and want legal advice.  Nothing in this post should be considered legal advice. 

EEOC Resolutions Announced Last Quarter.

eeocGINA, transgender employees, methadone use, and a temporary restraining order prohibiting retaliation during litigation are among the issues raised in cases resolved by the Equal Employment Opportunity Commission last quarter. As usual, I’ll highlight the cases that struck me and provide basic data on the other settlements.

Doctors Need Different Medical History Questionnaires for Pre-employment Physicals.

Doctor questionnaires frequently ask about family history of heart disease or cancer.  Conditional employment offers pending medical examinations are not uncommon.  If you combine the two . . . problem.  The Genetic Information Non-Discrimination Act (GINA) prohibits employment discrimination on the basis of genetic information, and family medical history counts as genetic info.  The employer agreed to provide “significant relief,” including stopping the practice and training management.

Transgender Employment Rights.

Brittany Austin presented as male when hired by Deluxe Financial Services Corp. After years of satisfactory work, she informed her supervisor that she was transgender and began to present as a woman. Employer refused to let her use the women’s restroom.   Coworkers, including supervisors, used hurtful epithets and intentionally referred to her as “he” and “him.”

EEOC sued under Title VII alleging sex discrimination. Employer settled for (1) payment of $115,000, (2) letters of apology and reference, and (3) a consent decree that includes providing health insurance without exclusion for medically necessary care based on transgender status, among other relief.

Don’t Discriminate Against Methadone Users, says the EEOC. Staffing agency asked for a urine sample. Client disclosed she was in a medically-supervised methadone treatment program. The agency replied it would not hire her. This conduct violated the Americans with Disabilities Act (ADA).   Agency paid $50,000 to applicant.

TRO to Protect Witnesses and Claimants.

EEOC sued Evans Fruit of  Yakima, Washington over sexual harassment of female farmworkers.   EEOC obtained a TRO and preliminary injunction against the company and manager after they had threatened and intimidated workers who had helped the EEOC. Employer prevailed in in the district court, and the case settled while on appeal to the Ninth Circuit for $272,000 to 20 claimants. What struck me, however, is the strategy of seeking a TRO against termination or other retaliation against witnesses or claimants.   Often, people fear asserting their rights because putting food on the table today is more urgent than asserting their rights to a workplace free from harassment.

Cameras to Monitor Hostile Workplace.

Cheddar’s Casual Café was too casual.  Sexual harassment was rampant. Managers requested sexual favors and were grabby.   Women’s complaints did not change the situation.

Employer agreed to pay $450,000 to 15 workers. The settlement, like many others, required the employer to train employees on harassment and report future complaints to the EEOC. Unlike others, this settlement also required the maintenance of workplace cameras and monitoring of workplace behavior. Next time, “she said” will have video confirmation, or not.

ADA Standards Differ!

Employers get in trouble when they comply with one law or use standards set for other contexts without also considering the Americans with Disabilities Act. Two cases in point.

A paper manufacturer required forklift drivers to pass U.S. Dept. of Transportation physical examinations.   DOT exams are not required for forklift drivers, but the company used it as a surrogate.  The effect was to keep qualified people with disabilities from the job.  ADA requires employers to conduct individualized assessments of employees’ ability or determine if a reasonable accommodation would enable them to work. Employer paid $180,000.

Cessna Aircraft relied on workers’ compensation guidelines with respect to hiring employees. Once again, employer did not make individualized assessments of whether the employees could perform the essential functions of the job. Employer paid two employees a combined total of $167,500.

Dumb Employer Award.

This quarter’s dumb employer award goes to Seymour Midwest, a tool manufacturing company. Its email-based interview asked the applicant if he were in the ideal age range of 45-52. He was older; the company did not hire him, and paid $100,000 to settle his age discrimination claim.  Maybe next time, they’ll also publish their ideal race and gender.

Other Resolutions.

Below is my summary of other resolutions. Note that nearly all settlements included non-monetary consideration, some of which is very significant.

NATIONAL ORIGIN / SEXUAL HARASSMEMT. Vail Condo Association allowed housekeeping manager to sexually harass Mexican female employees, including attempted rape, sex talk, propositioning, graphic sexual pictures, groping, and physically assault.   Also, he threatened women with termination and deportation if they complained.

$1,020,000

NATIONAL ORIGIN / RETLAIATION. Mining company subjected employee to harassment based on Polish ancestry. Ethnic slurs, offensive graffiti.

$62,500

SEX DISCRIMINATION – REFUSAL TO HIRE.  Mavis Tire Supply did not hire women in its 140+ stores as managers, mechanics and tire technicians. Settlement to be divided among 46 women

$2,100,000

AGE AND SEX DISCRIMINATION.  Medical device and equipment manufacturer engaged in pattern of NOT hiring women over age 40 during a three-year period when it hired more than 70 sales people. Settlement is for class of rejected job applicants.

$1,020,000

RELIGION DISCRIMINATION.   Hebrew Pentecostal is a Christian religion that does not work from sunset Friday to sunset Saturday. Employer asked the bookkeeper to work Saturdays. Employee refused and requested the accommodation of working Sundays or late nights. Employer fired him.

$25,000

DISABILITY DISCRIMINATION.   Employer Presence Health did not return employees on medical leave to their positions or other suitable and available positions. Instead, it terminated them or placed them on disability leave. On behalf of a class, EEOC settled for monetary and other relief.

$500,000

DISABILITY DISCRIMINATION. Employee visually impaired due to diabetes requested adaptive technology. Employer never responded to accommodation request and removed him from his job.

$250,000

DISABILITY DISCRIMINATION. Applicant disclosed prior back injury during post-offer medical examination. Exam showed no abnormalities or restrictions. Yet, employer wanted applicant to pay for $2,000 MRI, which applicant could not afford. Employer deemed this a rejection of the conditional offer. Court judgment: $33,000 back pay and interest plus $62,500 in compensatory damages.

$95,500

DISABILITY DISCRIMINATION.   Employer refused to extend additional unpaid leave after surgery for herniated disk. Fired her. Refused to rehire.

$31,000

SEXUAL HARASSMENT.  County Market Store subjected class of women to sexual harassment that included unwelcome physical contact. Employer must provide annual training and report to EEOC all complaints, among other consideration.

$300,000

SEXUAL HARASSMENT.  The manager at Taboo 2 Bar subjected six female servers to groping, indecent exposure, sex talk, quid pro quo promises. Servers who rejected sex offers got less profitable jobs. Some quit because of intolerable working conditions. Judgment to be addressed in Taboo 2’s bankruptcy.

$250,000

SEXUAL HARASSMENT.  Manager grabbed breasts of groundskeeper / housekeeper, exposed himself, touched other women employees and engaged in other repeated and egregious harassment. Supervisor of manager took no action. When one victim threatened to report to higher supervisor and harasser’s wife, they fired her.

$125,000

SEXUAL HARASSMENT.  Grocery store manager harassed Sharon B. with lewd comments, requests for sex, physical harassment and sexual assault. Store owner failed to act.

$125,000

SEXUAL HARASSMENT.  Warehouse manager regularly harassed women with comments, gestures, propositions, physical touching, and offered money for sex.   He created a culture such that male workers followed his lead and harassed coworkers.   Company no longer operating.

$80,000

RACE DISCRIMINATION.  Manufacturing company hired white applicant instead of biracial man who had passed all job assessment tests and had previous related work experience.

$19,000

AGE DISCRIMINATION.  “Younger and peppier” employees is what the equipment rental company owner wanted. He terminated a 52 year old, seeking “young blood.”

$37,000

AGE DISCRIMINATION.  Popeye’s employment application asked for date of birth.   During interviews, the general manager asked two different applicants how old they were and told them they were “too old” to work for the restaurant. EEOC sued on behalf of three applicants, ages 54, 40 and 58.

$36,000

SEX DISRIMINATION – PAY.  Female director of operations found the pay stub of the man whose job she filled. She was paid less than the three male directors.

$45,000

SEX DISRIMINATION – PAY.  Female purchasing director paid less than men.

$45,000

SEX DISCRIMINATION – PAY + RETALIATION.   Female order selector paid less than males. When bosses learned of her plan to file a charge, boss told supervisor to fire her without making it look unlawful, including unwarranted disciplinary actions.

$63,500

PREGNANCY DISCRIMINATION. Pharmacy fired two pregnant employees within weeks of each other.

$85,000

PREGNANCY + DISABILITY DISCRIMINATION. Licensed practical nurse had a medical condition that was controlled with medication.  When she became pregnant, she ceased the medication, causing her symptoms to become uncontrolled.  Her doctor placed employee on bed rest.  Three days later, the company fired her for absences related to pregnancy and medical condition.

$50,000

PREGNANCY DISCRIMINATION.  Moving company did not believe it was safe for pregnant woman to perform the packer job.  Owner told crew leader to not bring her to work because of her size and because she looked terrible. Employer fired her that same day.

$35,000

PREGNANCY DISCRIMINATION.  Employer told temporary staffing agency not to send woman to the job because she was pregnant. Employer was afraid she’d be hurt in the warehouse.  Employer paid the settlement.

$22,500

Jeff Merrick, Mediator

© 2016

“Clean Language” Is Not What You Think.

Yesterday, Multnomah County Court treated its mediators to a seminar on “Clean Language.”   It was not about avoiding F-Bombs.  Hell no. 

“Clean language” is a method of listening, facilitation and gathering information that seeks to minimize “interference” from the facilitator’s assumptions.  Think of interviewing alleged victims of child abuse.  How does one interview the girl or boy in a way as to not suggest answers?  How can we help the party  express information and interests free from –  or “clean” of – the biases or experiences of the facilitator?

But it’s not just about eliciting information.  Counselors use the technique to help people reflect upon themselves and identify their issues, patterns, problems and interests.  Then, clients may identify resources and attain outcomes.  Clean language takes motivational interviewing to the next level of pure client-driven discovery and transformation.

The Ted Talk on the topic is below.

Correct questions are the method, sum and substance of “clean language.”  Merely take the words from the client’s mouth and plug them into a few question formats.   Ted Talker Caitlin Walker used the key questions in the following example:

Q:  What would you like to have happen?

A:  I’d like to find my path.

Q:  And what kind of a path.

A:  One that I know I have to follow.

Q:  And where is that path?

A:  It’s there!

Q:  And is there anything else about that path?

A:  It’s not where I’m going!  It’s not with a partner I do not love and a career in front of a computer.

Clean language practitioners elicit metaphors from clients.  “It’s like an elephant,” for example.  And what kind of an elephant?  It’s a stuffed toy.  And where is the stuffed toy elephant?  In my bedroom.  And is there anything else about the stuffed toy elephant?  It reminds me of my mom, who gave me the elephant . . . . 

I tried the technique on my wife.  And you had a ‘productive day,’ what kind of a ‘productive day?’” She thought starting every question with “and” and repeating her words precisely was creepy and like a call center located in India.  (Maybe clean language techniques are not so good for spousal communications.)

“Clean language” applied to mediation?

The seminar reinforced my goal of helping parties identify their interests.  My ethical duty is to encourage self-determination of the parties and not to impose my own views about what the parties should want or accept.

But, mediating claims is not counseling.  A mediator’s job is not to guide people through their personal forest of self-enlightenment and transformation.  Instead, my job is to help the parties make informed decisions about whether it is in their best interests to resolve their dispute or leave the decision to a judge or jury.

Repeating words of the parties is not always productive in mediation.  Yes, we must offer people the opportunity to express their feelings and feel understood.  We should validate whenever possible and appropriate.  Then, we must move on, which often requires using DIFFERENT words to highlight the constructive or common aspects of the parties’ expressions.  This technique is “reframing.” 

In summary, clean language is an interesting and possibly powerful technique to listen, gather information and facilitate change.  My thanks to Bev Martin, who did a great job presenting the technique to us.  It reinforced certain mediator duties and techniques, even though it has limited application to mediation.

Jeff Merrick, Mediator

Copyright, 2016