Oregon Court Rules Private Attorney-Client Talk is not “Mediation Communications.”

Oregon Supreme Court Building WinterMediation communications are confidential; we know that.  One may not use mediation communications in a later proceeding.  What if attorney gave client bad advice during mediation?  May the attorney use mediation confidentiality to torpedo client’s legal malpractice claim?  Oregon’s Supreme Court answered that question in Alfieri v. Solomon, 358 Or 383 (2015).  This post summarizes the court’s key points.

Facts and Trial Court Dismissal.

Attorney Glenn Solomon represented Client Phillip Alfieri and sued Mr. Alfieri’s former employer alleging discrimination and retaliation. The parties mediated. After the mediation session failed, the mediator proposed a settlement, and the parties agreed to a confidential settlement. Months later, Client Alfieri concluded that Attorney Solomon’s work was subpar, and he sued Attorney Solomon for legal malpractice.

Among other things, the legal malpractice complaint alleged Attorney Solomon’s advice concerning settlement negotiations was negligent.   Simplified, his attorney argued, “Hey, Attorney Solomon’s advice was confidential ‘mediation communications.’  Client may not use attorney’s statements, and without attorney’s statements, client has no claim.”

In effect, attorneys are immune from suit for negligent advice during mediation, he argued.

The trial court agreed and dismissed the case.

Supreme Court: “Yes, but.”

RULE 1: Oregon’s Supreme Court agreed an attorney may use mediation confidentiality as a shield.  It contrasted Oregon’s strict confidentiality with the Uniform Mediation Act, which allows disclosure for later legal malpractice lawsuits.  The court suggested the legislature consider adopting the Uniform Act’s exception. (Footnote 10)

Nevertheless, the Supreme Court instructed the trial court to reconsider whether the allegedly bad advice constituted “mediation communications,” in light of its detailed interpretation of what constitutes “Mediation” and what constitutes “Mediation Communications.”

Defendant contended that all communications related to the mediation process are confidential regardless of when and where and with whom they occur. The Supreme Court disagreed.

The Court noted “mediation” is a process that (a) involves a mediator, and (b) it ends when there is a settlement agreement or the process is terminated. ORS 36.110(5).  Consequently, RULE 2: on the “when” question, communications that take place after a settlement agreement is signed are not “mediation communications,” even if the topic is the mediation.

RULE 3:  On the “with whom” question, before or after the formal session, a communication in connection with the mediation is confidential when attorney speaks (a) on behalf of client, (b) in connection with the mediation, and (c) to the mediator, the opposing party, or certain others.

What about attorney-client communications with no one else present or copied?

Defendant noted that confidential “mediation communications” include all communications in the course of, or in connection with, the mediation to “any person” present at the mediation proceeding. “Any person” includes attorneys and their clients, Defendant argued. So, any communications between attorney and client having to do with the mediation are confidential.

The court disagreed. “‘Mediation’ includes only that part of the process in which a mediator is a participant[,]” held the court.  “Separate interactions between the parties and their counsel that occur outside the mediator’s presence and without the mediator’s direct involvement are not part of the mediation, even if they are related to it.”  So, RULE 4: Private communications between attorney and client are not confidential pursuant to ORS 36.220.  Of course, the attorney-client privilege applies, and the client may waive that privilege when he or she wants to sue the attorney.

Conclusion:

If an attorney, in the presence of a mediator says to the client: “I really screwed up your case, you should settle for whatever you can get,” that admission cannot be used against the attorney.  If he or she says it privately, then client may use it against attorney.

Jeff Merrick, Mediator

© 2016

Oregon Patient Safety Commission Reports on Early Discussion and Resolution

Oregon Patient Safety Commission SealOregon’s Patient Safety Commission issued its first annual report on the Early Discussion and Resolution (EDR) of serious adverse events. This post hits the highlights.

What is it, again?

“Serious adverse event” is an “unanticipated consequence of patient care that is usually preventable and results in death or serious physical injury” that occurred on or after July 1, 2014.  It includes medical, dental and other alleged medical mishaps and malpractice.  The list of health care providers who may avail themselves of the process is long. (ORS 31.740(1))

EDR is a state-moderated process that seeks to encourage early disclosure and open communications between a patient and health care provider. Either may initiate the process with a notice. Communications are confidential and mostly privileged. There is a loophole for certain inconsistent statements that may, possibly, be plugged with foresight and a written agreement. The Oregon Patient Safety Commission (OPSC) maintains a list of trained mediators to assist the parties, which includes me.  (Click this link for  the law that established the EDR process.)

First Year Use:   29 Notices.

Patients initiated the process 21 times (72%) and health care providers filed eight notices (28%). Considering the start date of July 1, 2014, we assume the number of notices will increase as more procedures qualify and more people become aware of, and comfortable with, the process. Personally, I believe the number will balloon as we get into the summer of 2016, and people want to file notice to toll the statute of limitations.

Providers accepted 9 patient notices. We don’t have data on the number of provider notices accepted by patients.

12 rejected patient notices. Reasons? Already addressed another way (5 rejections). Not “serious adverse event” (5 rejections). Other reasons noted:  advised to decline by insurer or attorney; settled before EDR could start; “known complication, and “provider not employed by facility.  It appears that some providers noted more than one reason to reject EDR. 

Rest of the report.

Oregon Patient Safety Commission’s report describes the EDR process and its outreach efforts. The report provides a good summary of the program and some of the issues.

Analyzing the use of EDR, OPSC notes some providers fear participation may increase liability risk or trigger reports to the National Practitioner Databank or state regulators. Other providers understand that offering patients a path to understand what happened other than complaining to a licensing board or through an attorney can benefit both patient and provider.  “A conversation offering a full disclosure of what happened and an acknowledgment of the patient’s pain can prevent [complaints / lawsuits.]” 

On the other side, many patients simply don’t know their options for non-lawyer resolutions, whether offered by the provider, through OPSC or other means. OPSC provided a list of where to report alleged violations of standards of care for different providers, from Acupuncturists to the V.A.

The report describes the overall goal of reducing harm to patients and distress to providers by creating a Culture of Safety. It sets forth and describes the three pillars of safety: Learning Culture, Just Culture and Reporting Culture.  For anyone who wants that overview and how EDR fits into the Culture of Safety paradigm, I recommend the report.

Jeff Merrick, Mediator

© 2015

 

 

 

 

EEOC Resolutions Last Quarter

eeocMust employer accommodate a religious belief that its biometric time clock is a “Mark of the Beast?” May employee obtain a temporary restraining order against imminent termination? Under what circumstances can criminal background checks constitute discrimination?

Answers to these questions plus summaries of all EEOC resolutions reported last quarter follow.

Mark of the Beast in Coal Country.

CONSOL Energy began tracking employees’ time and attendance using biometric hand scanning. Mr. Butcher, a 35 year employee, objected. This was the Mark of the Beast, which would cause him eternal torment and keep him from his Lord. CONSOL tried to reason with Mr. Butcher: The machine leaves no mark; you can use your left hand (Revelations refers to the right hand). The employer did not offer any other way to track time and attendance.

So, Mr. Butcher retired. A judge and a jury found Mr. Butcher sincere and the employer failed to accommodate his religious belief. The judge awarded $586,860.

TRO prevented firing.

Ms. Ramirez worked at a family-owned bakery for 14 years, often enduring derogatory comments about Mexicans. She filed EEOC charges; the company retaliated with a defamation lawsuit. An arbitrator ordered reinstatement, but the company delayed reinstatement. Next time the company tried to fire her, the EEOC ran to court, and the judge found the employer gave no legitimate business reason for the firing and EEOC was likely to succeed on the merits.

As applied, Criminal History Screen cost BMW $1.6 million.

BMW switched logistics contractor. The contractor allowed former employees to reapply. When the contractor used BMW’s criminal conviction guidelines on incumbent employees, 80% of those disqualified were African American.

When a screening method disproportionately excludes people by race, the employer must evaluate whether the policy is job related and consistent with business necessity. BMWs policy resulted in terminating many long-term employees whose convictions were long ago and regardless of whether misdemeanor or felony. BMW agreed to rehire many employees and change its guidelines.

Several Non-Hiring Cases Last Quarter.

  • Target paid $2.8 million. Its employment assessments disproportionately excluded applicants based on race and sex. Also, one of the assessments performed by psychologists constituted a pre-employment medical examination, which an employer may not use before extending an employment offer.
  • No ambiguity about a trucking company’s pre-offer medical exams. It paid $200,000.
  • Dunkin’ Donuts hired a young guy and said he could start Friday. He said, as a Seventh-Day Adventist, he could not work sunset Friday through sunset on Saturday. Dunkin’ Donuts withdrew the offer. It paid $22,000 to end the lawsuit.
  • A trucking company used a strength exam as a condition of employment. The exam adversely impacted women and people over 40. The exam did not precisely measure the strength actually required by the jobs, and company agreed to stop using it.
  • Two hiring cases involved age. Enterprise Rent-A-Car paid $425,000 to resolve allegations that it did not hire people over 40 into management trainee positions. A legal staffing company withdrew an offer for temporary work shortly after learning that the attorney was age 70. It paid her $85,000.
  • Health care company paid $80,000 to settle ADA claim arising from revoked job offer after learning of worker’s multiple sclerosis that had not yet developed major symptoms.
  • “Congratulations, you’re hired. Did you say your wife is disabled? Never mind.” A conversation along those lines cost Waste Connections, Inc. $45,000.
  • Food service company that rejected applicant with a record of heatstroke and renal failure paid $40,000.

Wild Times at the Call Center.

Male and female supervisors, 13 of them, harassed female and male employees: groping touching, propositioning. Male employees who did not want lap dances or respond to repeated sexual advances by female supervisors were accused of being gay – that is, sexually harassed both physically and through gender stereotyping.   The employer paid $600,000.

The Rest of the Resolutions.

Here’s my summary of other third quarter resolutions. As with the settlements above, consideration usually includes more than money. Often, regular training and promises to comply with law are part of the settlements.

Sexual Harassment / Discrimination

After default, jury awarded $2,425,000 compensatory plus $15 million punitive damages for rape, attempted rape, groping, and being fired for opposing the harassment by two sons of the owner and another male supervisor of Moreno Farms.

$17.4 Million
Women in traditionally male jobs with Con Edison complained about harassment and unequal treatment. They worked with men in the field, power stations and other strenuous activities. Allegedly, the employer denied opportunities for training, equal jobs, and discriminated in performance evaluations and overtime assignments. $3.8 Million
Indiana grocer simply believed that men should be night-crew stockers. It denied women those jobs. $200,000
Shift coordinator regularly touched a woman machine operator. After she complained to the supervisor, she received more difficult work, less money, and other adverse actions. $120,000
Toyota salesman hired an assistant. Part of the assistance he wanted was sexual, apparently. When she said, “no,” he said, “you’re fired.” $30,000

Pregnancy Discrimination

Bar told cocktail waitress to begin her maternity leave early, soon after she started to show.

$20,000
Hired in May, employee told employer in June that she wanted maternity leave in August. Supervisor began planning to cover her work. However, when owner learned of the pregnancy, he fired employee. $48,000
Aircraft mechanic fired after she notified company she was pregnant and had a medical condition. $60,000

Disability Discrimination

Dialysis clinic fired 14 year employee for exceeding its medical leave policy. She needed more than four months to deal with her mastectomy and chemo. Company did not rehire her when released without restrictions two months later. Instead, it hired a freshly-minted nurse.

$190,000
Brookdale Senior Living failed to engage in interactive process within reasonable terms after worker sought temporary modified work schedule, ergonomic chair and lighting adjustments for fibromyalgia.   Brookdale wanted her to return to work without any restrictions. $112,500
Trucking company also required employees to be 100% before returning to work. No leave beyond 12 weeks. No transfer to light duty. $300,000
Orion Energy worker needed wheelchair and an automatic door opener to return to work. Orion said no door opener and allegedly fired him for seeking accommodations. $160,000
Roto Rooter denied Iraq War veteran reasonable accommodation for service-related disability $100,000
Care center did not care to employ an administrator after she disclosed her epilepsy during medical exam. $42,000
Mississippi HomeCare learned of employee’s epilepsy from seizure and failed to engage in interactive process. $100,000
Manufacturing company did not let senior employee — who lost his right hand on their job — bump junior employee during reduction in force. $65,000
Rehab facility fired admissions director while out on medical leave, just one week before she could return to work. $55,000
Temp agency refused to place woman with hearing impairment $25,000

Race Discrimination

Florida adult entertainment club fired African American bartender and the manager who opposed and refused to participate in discrimination.

$365,000
Manager in a Cleveland company frequently used racial and sexual slurs and treated African American employees less favorably. $80,000

Age and Sex Discrimination

Private school questioned fitness of new hire after learning he had retired from prior job.   Ageist and sexist comments preceded his prompt termination.

$69,000

Age Discrimination

Blind Veterans Association questioned two employees about retirement plans.   Then, it reclassified their jobs.   Then, it refused to consider the 76 and 70 year old employees for newly created jobs for which they were well qualified.

$150,000
Wisconsin employer fired two employees when they reached age 62, after having worked there for 16 and 25 years. $140,000

Retaliation

Female police officer in Kauai reported harassment. She became target of several internal affairs investigations.   EEOC found reasonable cause to believe retaliation. Police cleared her record and paid.

$100,000
Female employee questioned why she earned less than men. Company demoted her to worse job that she could not perform because of arthritis and carpal tunnel syndrome. Then, employer refused accommodations. $72,500
The first time she complained about being slapped on her butt, nothing happened. The second time she complained, she got fired. $50,000
An employee of Daimler Trucks was fired after only the first complaint about being “touched on her buttocks inappropriately.” (as compared to “appropriate?”) $40,000
Texas Oil Field Services Company fired its only woman roustabout after she reported sexual harassment. $30,000

 

Jeff Merrick, Mediator

Copyright 2015

Jacqueline Abel shares mediator best practices.

Jacqueline Abel enjoying retirement with her husband, Chris Robertson
Jacqueline Abel enjoying retirement with her husband, Chris Robertson

Jacqueline Abel is well known to Oregon’s mediation community.  Few have more experience and exposure to mediation.

It was my pleasure to work with her and learn from her when she served as Mediation Coordinator for Multnomah County’s Court.

Upon her retirement, she was kind enough to talk with me about a wide variety of topics.

Unfortunately I had to chop our 47 minute interview from about 6,500 words to about 1,400 words, which the Oregon State Bar Bulletin published.

Enjoy the interview.  Jacqueline shares many insights on best practices and what distinguishes s a good mediator.

Jeff Merrick, Mediator

Copyright 2015

Half-hour Mediation Prevents Malpractice Lawsuit.

True story.

Cara (not her real name) “knew” her Portland lawyer, “Paul,” had malpracticed because another lawyer had confirmed her suspicion that Paul screwed up. Cara called me to see if I would sue her lawyer and / or take over her personal injury case.

I listened to her and probed her interests. I knew if she kept calling, some attorney would take her case to earn $8,333 on the personal injury case and maybe some more if what Cara believed about Paul’s office’s case handling were true.

I offered to mediate for free. The target lawyer agreed.

In all mediation cases, I speak with both parties before the session. I talked with Cara for another 40 minutes on top of the 30 minutes from the first call. She needed the time to process her beliefs, fears and feelings and to define her true interests.

When I asked the lawyer what he wanted to accomplish from the session, he said, “I don’t know.” Our pre-session conversation lasted about 9 minutes.  Later, when we met just before Cara arrived, I asked him if he now had a goal for the meeting, and he disclosed it to me.

We all met around a table. The tension, if not anger, from Cara and her husband was obvious in their eyes, stiff jaws, raised shoulders and crossed arms. Cara articulated her concerns. (My 70 minutes with her helped!) Her husband was invited to add his concerns. Paul had a chance to communicate directly with Cara and offered a path forward with respect to resolving her claims and how better to work together.

About ½ hour after the session started, we all shook hands.

No lawsuit.

Our adversary system trains lawyers to consider legal rights and actions first. Most attorneys are less well trained to achieve results without asserting claims. Too often, attorneys focus on the dollar potential of the claim and not on other interests of their clients or potential clients.

I’m pleased I was able to help Cara and Paul identify their true interests and consider the best way to balance and accomplish their interests.

Jeff Merrick, Mediator

New AAA Rules Require Mediation.

The American Arbitration Association updated its rules for resolving construction disputes. Effective July 1, 2015, the rules require mediation of claims exceeding $100,000.

Rule 10, however, is relatively toothless. Unless the parties’ initial agreement requires mediation, any party may opt out.

Under the rule, mediation and arbitration take place concurrently so as not to delay the arbitration proceedings. Here’s the link to the new rules.

Jeff Merrick

 

 

 

 

Mediation Confidentiality Rules from Oregon Department of Justice

Oregon's Attorney General
Oregon’s Attorney General

The Attorney General has developed two mediation confidentiality rules: A rule for the mediation of workplace interpersonal disputes and a rule covering most other mediations. Agencies may adopt either rule or both rules. With the passage of SB 189 (2015) the adoption of mediation confidentiality rules has changed. The webpage below explains those changes and provides links to the current rules.

Source: Oregon Department of Justice – Confidentiality Rules

First Quarter EEOC Settlements.

rastahairAccommodating Rastafarian hair, overly broad medical inquiries, and the continued use of the “N-word” are among the items that caught my eye in EEOC news releases. This post highlights what interested me and then summarizes all settlements announced during the first quarter.

 

Employer must accommodate Rasta Hair.

Christopher Young applied to deliver beer from the warehouse to customers. The distributing company did not like Mr. Young’s hair, and said he’d have to cut it.   “That’s against my Rastafarian religion,” said Mr. Young.

Everyone knows about Rastafarian dreadlocks. Originating in Eastern Africa, warriors of several tribes had them. Europeans pronounced the hair “dreadful.” Rastafari cite Biblical passages against cutting hair. Practitioners revere people with very long hair because it indicates patience and a long spiritual journey.

The employer paid $50,000 for its refusal to hire Mr. Young without a haircut.

Employer may not require ALL medical information on employees.

PAM Transport, Inc. wants safe truck drivers. Its policy required drivers to tell the company whenever he or she had ANY contact with a medical professional. That policy cost PAM $477,399 for a violation of the Americans with Disabilities Act.

Under the ADA, the employer may only ask about medical conditions that are job related and necessary for the business.   Requiring information on EVERY medical contact is overly broad.

Racial Harassment.  Really!?

EEOC reported three racial harassment settlements. I know I should not be surprised by racial harassment any more than sexual harassment, age, or other forms of discrimination. Perhaps disappointment is a better term. I just feel that we, as a people, should be more advanced and not degrade others for sport.

A Detroit auto dealership paid $75,000 to a detailer who endured racial slurs and jokes from his supervisor and co-workers.   A South Carolina company paid and employee $40,000 who it fired in retaliation for complaining about his white co-worker’s repeated use of the “N-word.”

A contractor denied responsibility for workplace racial harassment of African American subcontractors. It fought the case until the Sixth Circuit Court of Appeals found it to be a joint employer. Then, it settled for $95,000. (EEOC v. Skanska USA Building, Inc.)

Here’s my summary of other first quarter cases.

Sexual Harassment / Retaliation Settlements

Nursery business supervisor propositioned female employee. He fired her about a month after she said, “No.” $40,000
County sheriff’s department, including the Sheriff’s brother subjected women to severe sexual harassment, including sexual touching, over a period of years. Repeated complaints went unaddressed, until county fired her for complaining about the brother. $870,000
Owner of Seapod Pawnshops referred to his mostly female workforce as “my Seapod bitches” and subjected them to graphic sexual comments. He also disparaged African-American customers. $300,000 + owner barred from business
Female fired after complaining about co-worker harassment in retail store. $20,000
Pregnancy Discrimination: Company rescinded job offer one day after it learned employee had recently given birth and had pregnancy-related surgery $20,000
Disability Discrimination Settlements
Worker returning from maternity leave sought additional unpaid leave due to post-partum depression. Employer fired her. Then, it extended her leave. However, employer did not return her to work, even though there was a vacant position for which she qualified. $75,000
Car dealership hired manager with promises of partnership. After multiple sclerosis diagnosis, employer failed to offer partnership and asked, “What’s wrong with you? Are you a cripple?” $250,000
House cleaning service made fun of a worker who walked differently because of a stroke. She complained about being mocked.   Employer asked, “Are you crippled?”   Employer argued that just a few instances over a two-day period did not constitute unlawful harassment because they were not sufficiently severe or pervasive. $15,000
Hospital fired woman who needed leave longer than the six-month policy because of breast cancer.   Hospital believed she’d never return to work, despite a note from her doctor saying she’d be back. $300,000
Kmart demands urine samples from applicants. Applicant with kidney disease offered to give blood sample or hair sample instead.   Kmart refused to accommodate the request. $102,048
Marine Corp veteran asked for unpaid medical leave because of service-related seizures. Company denied request because he was a probationary employee.   The ADA applies to probies, too. $65,000
Employer admitted firing employee because of HIV status.  $125,000
Employer withdrew job offer after it learned applicant took prescription medication for a seizure disorder $30,000
Title examiner sought part-time work because of her end-stage renal disease. At first, employer accommodated. Then, it revoked the accommodation and fired her. $95,000
Employee with scoliosis wanted a mat on which to stand for back pain. When employer refused, employee alleged discrimination. Then, employer fired her. $27,500
Hospital greeter asked for written job instructions because she could not keep it all straight in her head.   Cognitive disability. Hospital fired her instead of working on an accommodation. $125,000
Age and Disability Discrimination: Wal-Mart supervisor referred to his subordinate as “old man” and the “old food guy.” Following diabetes diagnosis, he sought reasonable accommodation. Employer refused to engage in interactive process. $150,000

I’m on the AAA Roster of Mediators

Today, I learned that the American Arbitration Association added me to its list of approved mediators.

I take pride in this listing.  The AAA is a respected leader in alternative dispute resolution, and it fully vets professionals on its roster.

The AAA describes itself, in part, as follows:

The American Arbitration Association (AAA), is a not-for-profit organization with offices throughout the U.S. AAA has a long history and experience in the field of alternative dispute resolution, providing services to individuals and organizations who wish to resolve conflicts out of court.

The AAA role in the dispute resolution process is to administer cases, from filing to closing. The AAA provides administrative services in the U.S., as well as abroad through its International Centre for Dispute Resolution® (ICDR).

The AAA’s and ICDR’s administrative services include assisting in the appointment of mediators and arbitrators, setting hearings, and providing users with information on dispute resolution options, including settlement through mediation. Ultimately, the AAA aims to move cases through arbitration or mediation in a fair and impartial manner until completion.

Motivational Interviewing: a Mediator Tool to Help Ambivalent Parties

IMG_6479The parties are close, but both resist one final move. That is the predictable third impasse in many mediations. Some people resist because of stubbornness and others because of ambivalence. Mediators can borrow concepts from Motivational Interviewing to help ambivalent parties resolve their disputes.

Motivational interviewing is well known in the field of addiction counseling. One way to deal with addicts is to confront them, label them, and tell them they must change. Many Oregon mediators use that authoritarian style – “It’s a good deal; take it.” Motivational interviewing uses a different approach.

Motivational interviewing emphasizes personal choice and responsibility. The counselor / mediator acts more like a collaborator to identify the best option rather than the expert telling them what is the best for them. Too often, authoritarian mediators cannot know what is best for a person because, often, they do not elicit client’s concerns, which may have nothing to do with the merits. (“I’m so angry! It’s the principle! I can’t take off two weeks for trial. My child needs to get to soccer.)

William R. Miller and Stephen Rollnick are credited with advancing motivational interviewing. The articulations of the prinicples and process have evolved over time. In their classic book, Motivational Interviewing: Preparing People to Change Addictive Behavior, they articulated five general principles to guide motivational interviewing.

The first is to Express Empathy with warm and reflective listening. So, the first step is to ask the broad, open-ended questions. Do not judge the answers (at least not initially). Instead, accept the client’s feelings and positions and reflect them. “Yes, you can go to trial, and it might it might be your best choice. Let’s keep working at this mediation so you get a sense of it.”

The second principle is to Develop a Discrepancy. For addiction counseling, that means a discrepancy between their broader goals in life and the drinking that is interfering with those goals. Similarly, as a mediator, I’ll help parties comprehend the different impacts that settlement or trial will have on achieving their goals. In motivational interviewing, as in mediation, the most persuasive voice is the client’s own voice. So, I try to get the client to state for themselves the pros and cons rather than authoritatively declaring them, unless the parties ask me for my opinion.

The third principle is Avoid Argumentation. Just as counselors do not want addicts defending their cocaine use, mediators do not want the parties arguing the benefits of trial. When a mediator hears the party pushing for trial, then the mediator should change approaches.

Motivational interviewing’s fourth principle is to Roll with Resistance. If you do not argue back, then what? Go back to the goals. “Tell me how trial will accomplish your goals? If your goal is to protect others, have you considered other avenues such as reporting them to the government agency?” Actively problem solve with clients. Help clients solve THEIR problem, THEIR way.

The last principle of motivational interviewing is Support Self-Efficacy. In addiction counseling, the psychologist fosters the message that “you can overcome your challenge.”   For mediators, optimism that the case will settle is a critical component and must start with the first communications. Then, mediators must keep the parties moving forward and praise every step.

The five principles of motivational interviewing have evolved to four processes, which are:

  1. Engaging, which involves raising the issues and hopes, and establishing a trusting relationship. In mediation, establishing rapport is critical and one of the few factors established as important for success by empirical study.
  2. Focusing, which refers to narrowing the discussion to the concerns that the clients want to change. Similarly, once mediators give both sides a full opportunity to unload all of their concerns, then mediators must focus the parties. I think of mediation as a big funnel.
  3. Evoking, which refers to getting clients to increase their own desire to change, readiness to change and confidence to change. In mediation, we try to talk about putting the dispute behind them and how that would feel compared to the work, stress, costs, and risk of trial.
  4. Planning: helping clients with practical steps to move forward with the change they want. Typically, parties in mediation have their lawyers to help them execute their decisions.

For me, studying Motivational Interviewing is like cross training. It reinforces many of the well-accepted concepts in mediation. Ultimately, I want to help people resolve their lawsuits. Like any professional, the more I study and practice mediation, the better I can serve others.

© 2015 Jeff Merrick

Know your interests.

UnknownChip Kelly, football coach of the Philadelphia Eagles, via University of Oregon, is teaching all negotiators about keeping your interests paramount.

As he said publicly, he will not mortgage the team’s future for Marcus Mariota, but his interest dictate that he will try – very hard – to get Mariota this evening without sacrificing the team’s future.

Coach Kelly won with second-tier players at Oregon because he developed and deployed them better than inferior coaches with superior players with the new style of fast-break football, which won with mismatches, confusion, and superior conditioning. Applying science and math to football increases power and efficiency of the Team. “Chip Kelly football” is to “old football” what Amazon is to Sears Roebuck and Uber is to Taxicab Companies. He’s ahead of the game, but not for long.

Other college teams have caught on and caught up. Oregon ranked 34th in plays per game last season. Pac 12 defenses see many teams spreading the field and playing fast, so the they practice almost weekly and are less overmatched than they were a few years ago.

Kelly sees a short window of scheme advantage. So, he races to accumulate the players he needs to win now. He dumped three pro bowlers because other players play HIS football better: receivers who block, runners who run and not dance, and quicker-witted quarterback who can freeze defenses with his running ability.

Kelly does not need a star system. Oregon made it to the national championship with Darron Thomas (vs. Cam Newton). Mr. Thomas cannot even start in the Arena Football League. And remember Heisman Hopeful Dennis Dixon? Thought not.

Coach Kelly upgraded to Quarterback Sam Bradford. If he can upgrade again, he will.

Coach Kelly is not a mystery. He is pursuing his team’s interest in getting the players he needs to win now.

Chip Kelly believes he found the treasure map, and he is trying to get there before anyone else.

Jeff Merrick

EEOC Resolutions for 3rd Quarter

logoHostile “huddles?” Slavery in paradise?  Employer website photos evidence discrimination? Severance agreements discourage EEOC complaints?   These cases caught my eye during my review of the EEOC resolutions announced in the Third Quarter of 2014.  Blurbs on them and a summary of all settlements follow.

EEOC continues efforts to maintain its jurisdiction / employee access.

Cardiac Science Corporation laid off 57 employees and offered them severance agreements. One of the employees previously filed an EEOC charge, and the company retaliated by stopping severance payments. When EEOC read the agreements, it said, “Wait, they’re all defective!” All 57 agreements could be read as prohibiting employees from filing EEOC charges of discrimination.

The case reminds me of EEOC’s long-time stance against agreements that discourage employees from filing charges or participating in investigations. Not just severance agreements, but also pre-employment arbitration agreements and settlement agreements.

Previously, so long as the agreements “carved out” the right to file charges and participate in EEOC investigations, employers felt protected. Lately, however, EEOC has been more aggressive. It has challenged common provisions such as (1) broad releases covering all claims, (2) nondisparagement, (3) nondisclosure, (4) certification that the employee has not filed any charges as of the date of the agreement, and even (5) cooperation clauses that require employees to promptly notify the company of contacts relating to legal proceedings. These provisions, says EEOC, can discourage people from filing EEOC claims or cooperating with the EEOC.

McCormick & Schmicks paid $1.3 million to resolve race discrimination claims.

Baltimore locations of Portland-based McCormick & Schmicks allegedly did not want African-Americans in front-of-the-house jobs. EEOC alleged a pattern or practice of refusing to hire black workers for those jobs and denying those job assignments to existing African-American employees. M & S established a $1.3 million claim fund and signed a consent decree setting forth recruitment, and hiring goals, among other things.

EEOC’s allegations included that the employer’s web advertising for job opportunities “contained visual depictions of employees that expressed a preference for non-black workers to the ordinary reader.” Employers, advertising agencies, and employees should take note.

Close to Slavery in Hawai’i as employers abuse Thai Farmworkers

$2.4 million settled the claim of national origin discrimination and retaliation against 500+ Thai farmworkers.  Global Horizons extracted exorbitant fees form Thai workers for the opportunity to work in Hawai’i, which resulted in “debt bondage,” according to EEOC. Once there, denial or delay of pay made things worse, as did having passports confiscated.  Production quotas, denial of food and water, unsanitary conditions and other indignities did not apply equally to non-Thai workers.

Hostile Huddles.

Seemed like a nice idea.  Employees would gather each morning to discuss milestones in their personal lives.  One employee was not comfortable with all the talk of religious and church activities.  He objected to the mandatory meetings.  He filed an EEOC charge, and the company fired him.  EEOC settled for $80,000

Here’s my table of the other settlements.  Again, the settlements usually include additional terms such as training, posting legal duties, reporting to the EEOC, etc.

Race Discrimination / Retaliation

Joint Apprenticeship and Training Committee of the Sheet Metal Workers discharged African-American trainee just two weeks before graduating a 4-year apprenticeship program. JATC cited poor performance despite apprentice’s having satisfactorily completing nearly all eight terms

$34,500

Temporary African-American employee. Boss wanted him gone because of his race. Supervisor refused to discriminate. She hired him into a permanent position. Boss retaliated, eventually terminating the supervisor.

$45,000

Age Discrimination

DSW, Inc., the shoe store, fired employees over age 40 during a reduction in force. EEOC alleged DSW retaliated against employees who opposed the orders to discriminate.

$900,000

Pregnancy Discrimination.

 
Merry Maids is a little less happy after paying to settle allegations that it fired a Team Captain because of pregnancy-related health issues.   She said the issues were minor and did not prevent her from working.

$40,000

Timing, Timing, Timing. Arkansas employer fired a lab technician the same day she let the employer know she was pregnant.

$30,000

Timing, again. Atlanta retailer fired new employee two days after hiring her, immediately after she told the store manager she was pregnant

$15,000

Sexual Harassment / Discrimination

Jennifer worked in traditionally male profession: apprentice electrician. She complained about the harassment, but the company did not investigate or take action.

$55,000

McDonald’s franchise managers harassed four female workers, including teens. Two quit. Innuendo, comments, touching = hostile work environment.

$200,000

Wells Fargo manager and another female bank teller allegedly sexualized the workplace. Gestures, graphic sexual comments, images, touching, suggesting that other women wear sexually provocative clothing = hostile work environment. One worker quit.

$290,000

Restaurant manager sexually harassed female hostess, including propositions, grabbing body parts, and attempts to kiss. This stuff still happens!

$15,000

Oh, oh, O’Reilly auto parts paid for the conduct of female manager who allegedly groped and made sexually offensive comments to male employee.   O’Reilly allegedly did not respond to his complaints adequately.

$35,000

Employer wanted to protect woman from the risk of being assaulted.   So, it only wanted men to work as its part-time courtesy van driver.

$10,500

Unequal Pay. Note to employers: Don’t discriminate against HR directors. They’ll figure it out. This woman noticed the company paid her $35,000 less than her predecessor and $19,000 less than the employer’s minimum salary range for the company.

$182,500

Disability Discrimination

All that and a bag of chips. Walgreens fired an 18-year employee with Type II Diabetes after she ate a $1.39 bag of chips. Store security did not understand nor seek to understand her note of explanation as to why she did not pay first, “My sugar low. Not have time.”   EEOC claimed disability discrimination. The judge noted that the employer failed to allege “misconduct that is unrelated to her disability.”

$180,000

Nursing home fired cook and dietary aid shortly after she began working when he supervisor noticed the worker did not have full use of her left arm.

$35,000

Different nursing home rescinded offer to hire after because of hearing impairment.

$75,000

Job applicant said reason for leaving last job was “medical.”   Popeye’s Chicken manager asked him to disclose what “medical” meant. When applicant said “HIV,” manager said he ain’t working at Popeye’s.

$25,000

Company erroneously placed short-term employee on disability leave.   It revoked leave and fired him two days before he was released to return to work. EEOC said employer violated ADA. Complying with leave laws is not a safe harbor against possible ADA violation.

$20,000

Company terminated employment offer employee disclosed he had a TENS unit to deal with back pain / impairment. Company said, “no place to charge the unit during the day.”   Employee said, “I don’t need no stinking charger.”

$37,500

Retaliation. Manufacturer fired a maintenance mechanic and human resources assistant after they complained about discrimination.

$92,500

Copyright 2014 by Jeff Merrick

Building Rapport is an Essential Skill for Successful Mediators

Art of Connecting
Art of Connecting

“The key to mediator success lies in developing rapport with the disputing parties,” concluded Professor Stephen Goldberg of the Northwestern University School of Law in Chicago.

Professor Goldberg surveyed mediators and disputants over a number of years to determine what makes mediators successful and unsuccessful.  Establishing rapport and confidence is one of three keys.  The others are “process skills,” which include persistence, patience, timing, and use of mediator tools, and “evaluative skills,” which include substantive knowledge and risk assessment.

Building a relationship of trust and confidence is important so that (1) The parties will disclose more information, which the mediator can use to facilitate resolution, and (2) The mediator earns credibility to offer suggestions later.

Professor Goldberg listed what he called “confidence-building attributes.” They include the following: friendly, empathic, likable, respectful, caring, wants to find solutions, integrity, honest, nonjudgmental, professional, and smart.

Okay, so how does a person make others feel that way? How do people build rapport?

Authors Claire Raines and Lara Ewing wrote a book containing their answers to that question, The Art of Connecting: How to Overcome Differences, Build Rapport, and Communicate Effectively with Anyone.  They focused on what works across cultures and in different contexts by examining how a few “masters of connection” succeed.

Raines and Ewing discovered five “core principles” of connecting.

There’s always a bridge.  People skilled at connecting believe they can find some common ground with others, no matter how different they appear on the surface.  Finding common ground is not always easy. It takes keen observational skill to pick up on cues and respond.  The masters experiment and adjust to feedback, verbal and nonverbal.

Curiosity is key. Raines and Ewing believe it is impossible to be both curious and judgmental at the same time. The masters approach people with genuine openness and curiosity.

What you assume is what you get.  Masters of connection approach each person assuming that the person is good, has important things to say, and can make valuable contributions.  Positive expectations contribute to successful outcomes, they assert.

Each individual is a culture. We hear much about cultural competence and how to relate to one culture or another.  However, masters of connection avoid such prejudice and treat each person as if he or she were a unique culture.  Do not blindly apply rules for how to relate to Middle Eastern males, for example.  First, find out a little more about the person: how has his education and life experiences shaped his beliefs.  How does he present himself today and how is he responding?

No strings attached. Good connectors do not expect reciprocity.  They are hospitable, eager listeners but do not expect that same from the other.

Mediation training instructs mediators to build trust and rapport through a formulaic listening approach known as VECS: Validate, Empathize, Clarify and Summarize. VECS provides a very rough method to make people feel heard.  However, because each person differs, any formulaic approach is bound to fail some of the time.

By contrast, the “formula” of the masters is to look and listen for clues of what each individual needs.  Once the master has a hypothesis, he or she tests. Does the other respond to a smile with a smile or with a nervous look away?  Does the other need to settle in with chitchat or does she want to get down to business?  If the other does not respond positively to one approach, the master tries a different approach.

Masters of connection must also be aware of their own reactions. Are our judgments of the other getting in the way?  Are we responding with positive facial expressions and body language or with frowns and fidgets?  Are we listening or interrupting? Or involuntarily sighing? Are we criticizing or inquiring and praising?

In conclusion, empirical data indicate that building good rapport is an important determinant of whether a mediation will succeed or fail. Building good rapport is not an accident. It is an art that mediators and others can develop through effort and practice.

Jeff Merrick, 503-665-4234

© 2014

EEOC Resolutions Announced During the Second Quarter

fred MeyerA lewd customer, combined with management’s failure to respond appropriately to employee complaints about him, cost Oregon retailer Fred Meyer $487,500 to settle sexual harassment charges.  That story, generalized anxiety disorder as a disability, and more, as I recap EEOC resolutions announced in the Second Quarter of 2014.

Sexual Harassment by Customers.

The man visited the Milwaukie, Oregon Fred Meyer store almost daily for several years.  And why not?  The 84 year old would fondle, grab, and make nasty comments to employees and no manager stopped him.  He’d visit multiple times on certain days.  Management instructed employees that he could not be excluded unless the security department personally witnessed his offensive conduct, despite numerous complaints and even video evidence.  The settlement provides a reminder to employers that they need to take appropriate action to protect employees from harassment at the hands of customers, too.

Male victims of sexual harassment.

It’s not just women who endure egregious conduct.  An Albuquerque dealership paid $2 Million to settle a lawsuit alleging that managers frequently solicited oral sex and regularly touched, grabbed and bit male workers on their buttocks and genitals – for years.

Lots of Disability Discrimination Cases.

The disability case that jumped out to me was the failure to accommodate an employee’s request for a service dog because of her generalized anxiety disorder (GAD).  It seems like 60% of the people I know could be diagnosed with GAD.  However, professionals say the number of those truly suffering from GAD is less than 5% of the population.

So, the employee’s dog alerted the woman to oncoming panic attacks, helped alleviate symptoms during a panic attack, and could also do other “tasks,” such as retrieve objects and guide her to an exit. The employer paid $53,000.  Plus, as in almost all EEOC cases, the consent decree required other things, including employee training and reporting to the EEOC for a number of years.

Engage in the interactive process!

Several disability discrimination settlements involved the employer’s failure to consider any accommodation.  Maybe a magnifying glass or new computer monitor was all the legally-blind employee needed, for example. ($18,000).  How about providing and “individualized assessment” of whether the worker could do the job instead of just assuming that a worker with “degenerative disc disease” would be unable to do the job. ($110,000).  When the job applicant’s lack of kidneys prevented her from producing testable urine, consider her request to use a different method of drug testing.  ($30,000).

$1.35 Million despite complying with FMLA.

Beware of rigid rules that do not consider all legal obligations.

The hospital knew what the Family Medical Leave Act required.  If an employee was not covered by the FMLA, it would fire him after being absent for a short time.  It fired covered employees who needed more than 12 weeks leave.  The consent decree said that a rigid policy that limits the amount of leave can violate the Americans with Disabilities Act when the employer fails to engage in the interactive process.  Also, the employer cannot require employees returning from disability leave to present a doctor’s note certifying that they may return to work without any restrictions.

Here’s my table of the other settlements.  Again, the settlements usually include additional terms such as training, posting legal duties, etc.

Sexual Harassment / Retaliation Settlements
Restaurant owner physically verbally harassed, touched employees, including allegations that he drugged and sexually assaulted female employees.  Also fired manager who objected to owner’s conduct.

$200,000

Male bank branch manager repeatedly subjected females to physical and verbal harassment.

$300,000

Male supervisor subjected male employees to sexual touching and comments. Solicited nude photos and sex.

$155,000

Male employee alleged sexual harassment, including gestures of a sexual nature.

$75,000

Two related sexual harassment claims led to payment for a group of current and former employees of a hospital.

$65,000

Manager streamed security video footage of female employee’s breasts and body onto his office computer.  Company failed to take immediate and appropriate action.

$11,000

Disability Discrimination / Retaliation
Management company fired bookkeeper with impaired vision (retinitis pigmentosa) without engaging in interactive process.

$100,000

Christian Care Center, a nursing home, fired employee immediately upon learning he was HIV positive.

$90,000

Chicago freezing services refused to hire man with prostate cancer.  Deposition testimony included former employee reporting the compassionate owner’s rationale, “in a best-case scenario, he would end up wearing diapers.”

$80,000

Medical transportation company refused to accommodate EMT-paramedic with multiple sclerosis.  Employee sought additional leave, but was fired for absences related to disability.

$72,500

A North Dakota oilfield services company fired employee shortly after it learned he had diabetes.  It did not care that employee was still able to perform job.

$65,000

Poultry processor moved employee from one job into another department, which was in a cold environment.  She could not work there because of her anemia.  There was an open job in warmer environment.  Nevertheless, employer fired her before she could provide a doctor’s note substantiating her condition.

$52,000

Religion and National Origin.  Chicago-area Cadillac dealer paid for the manager’s uses of “terrorist, “sand n—-r,” and “Hezbollah” toward it’s three Arab Muslim employees.  Proving, again, that Free Speech is not always free.

$100,000

Race Discrimination.  Chapman University, in Orange California, denied tenure and promotion to African-American despite strong recommendations by many professional peers.  She was the first of her race allowed to even apply to its school of Business and Economics.

$75,000

Gender Discrimination Against Men.  Makeup and beauty products seller allegedly had a practice of refusing to hire men as Zone Managers.  Finally, it promoted one man after he complained about the practice.  Then, it fired him.  Settlement covers a class of qualified male applicants.

$354,250

Age Discrimination.
EEOC alleged bank fired two women managers because of age and gender.  Bank applied performance criteria that differed of those it applied to younger men.

$230,000

Insurance sales company’s managers made age-related comments and fired three employees because of age or complaining about discrimination.

$300,000

Hospital refused to hire long-time employee for better job.  Decision maker indicated he wanted someone younger, more energetic, and without any back issues.

$12,500

Employer revoked job offers to two women, each over age 70, one day after CEO learned of their ages.

$40,000

Equal Pay.  Checkers, a fast food restaurant, paid women less than men and scheduled them for fewer hours.

$100,000

Equal Pay Retaliation.  Owner fired woman truck driver fired after she texted her belief that he paid her less than men.  Back pay of $21,000 plus liquidated damages of $21,000.

$42,000

Pregnancy Discrimination.
New York office furniture store withdrew employment offer for controller position after it learned of pregnancy.

$90,000

Weight Watchers paid $45,000 after it told pregnant applicant she was disqualified under its “goal weight” requirement despite her being a lifetime member who had met and maintained weight goals before pregnancy.

$45,000

Employee began premature labor at 7 ½ months.  Doctor stopped labor, and employer did not want employee to return to work until after the birth of her baby.  After employee said she intended to file a pregnancy complaint, company fired her.

$27,000

Pregnant employee asked to be excused from working with cleaning chemicals.  Employer wanted a doctor’s note approving chemical use; doctor refused.  Employee wanted job, anyway, but employer fired her.  EEOC sued, and employer paid.

$25,000

New employee told supervisor she was pregnant and asked that it be kept confidential.  She complained multiple times of disparate treatment until employer fired her.

$22,500

Chick-Fil-A noticed the applicant was pregnant.  Asked her about it, and told her to call back after she’d had her baby and childcare taken care of.

$10,000

Early Discussion and Resolution of Adverse Health Care Incidents in Oregon

Today, Oregon’s new law for the Resolution of Adverse Health Care Incidents becomes operational. Here are the top ten things to know about it:

[11.]   I’m certified as a mediator for the program with the Oregon Patient Safety Commission.

10.   “EDR” means Early Discussion and Resolution process for Adverse Health Care Incidents.

9.   The list of covered health care providers is long, from physicians to denturist to occupational therapist. OAR 325-035-0001(7).

8.   “Adverse Health Care Incident” includes death, significant impairment of body function, significant damage to body structure or “necessitates medical or surgical intervention to prevent, mitigate or correct significant impairment of body function or significant damage to a body structure.”  OAR 320-025-0001(14).

7.   It starts with a “notice of adverse health care incident” filed with the Oregon Patient Safety Commission by the health care facility, provider, patient, or employer.

6.  “Discussion Communications” differ from “Mediation.”

5.   “Discussion Communications” are not fully confidential, there is a exception for certain prior inconsistent statements.  I prepared a form of “Agreement to Talk” in an attempt to close the confidentiality loophole.  Let me know if you want it.

4.   Early Discussion Communications are the hoped-for heart of the law, helping patients get answers as to what happened and why.  Helping providers communicate openly.  Doctors and nurses who hurt patients often suffer as “secondary victims,” which can sometimes lead to great emotional suffering, quitting their profession, and suicide.  For clear cases, EDR will be quite helpful.  For less-clear cases, it might take some time for health care providers to determine, in good faith, what happened.

3.   The program applies to adverse health care incidents that occur on or after July 1 2014.

2.   The program is voluntary;  the patient does not need to attempt early discussions or mediation.

1.   Filing a notice of adverse health care incident tolls the statute of limitations for up to 180 days.

Jeff Merrick

Copyright 2014 by Jeff Merrick, Merrick Mediation