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

Mediate in Lieu of Mandatory Arbitration

MULT CO 2For civil suits under $50,000, state law requires nonbinding arbitration.  However, an underused local rule allows parties to Multnomah County lawsuits to substitute mediation for nonbinding arbitration.

Mediation is a great option because arbitration is not always the best way to resolve small cases.

Keep a small case small.  Nonbinding arbitration can increase costs.  Typically, both sides take depositions.  Often, one or both sides pay experts for live or written testimony.  Careful and / or anxious counsel will prepare diligently for the arbitration hearing.  If one side wins big, then, the loser will likely appeal to a full-blown trial.  That costs even more.  So, the best chance to keep costs down is to take advantage of Multnomah County Supplementary Local Rule (SLR) 12.025.

The court’s process is simple.  The parties file a stipulation with the court (form is in SLRs).  Then, the parties mediate within the same time frame as arbitration – 91 days from assignment to arbitration. (SLR 13.165).  Even if the parties do not settle, they have met their mandatory arbitration obligation.

If the parties WANT to continue with another step of arbitration following mediation, they can, but they need not.

The mediator reports to the court whether the parties settled.

If, after agreeing to mediate, a party does not mediate in good faith, then the court may award the other party its consequential costs.   The rule does not define “good faith.” So, I look to where good faith bargaining IS defined.

The National Labor Relations Act requires good faith negotiations in collective bargaining.  Federal law does not require the parties to agree. It does not prohibit hard bargaining, that is, asserting a strong position.  However, a “take it or leave it” approach can be considered bad faith.  Also, failing to meet or not having sufficient authority to make agreements can be considered bad faith.  As a practical matter, I doubt that “good faith” would be an issue if the parties actually show up and exchange offers.

Cost of mediation.  SLR 12.025 also states, “unless the parties agree to different compensation,” they pay the mediator at the same rate as the arbitrators who conduct mandatory arbitration.

Conclusion.  Mediation in lieu of mandatory arbitration is underused.  Think about whether your client might benefit from it.

*Jeff Merrick is qualified by the Oregon Judicial Department for court-connected mediations and accepts mediations under SLR 12.025. 

EEOC Resolutions Announced during First Quarter

eeocA couple of Walmart cases plus another GINA case were among the resolutions announced by the Equal Employment Opportunity Commission (EEOC) during the first quarter of 2014.  As usual, I will highlight what I found most interesting and summarize the settlement data on most of the other cases.

Qualified to Volunteer;  Not qualified for Paid work.

The hospital used a volunteer with cerebral palsy in the child care center.  But, it refused to hire her for a paid position because of its fear that her disability meant she could not care for children safely.  Stereotypes cannot ground decisions on who is qualified for the job. Hospital paid $75,000.

I’ll get your kids, too!

EEOC charged Walmart with refusing to hire the children of a woman who had filed a sex discrimination charge.  Mom had a retaliation claim, for which Walmart paid $87,500.

Walmart punishes the victim.

Intellectually disabled, Jamie Wells put up with sexual harassment from a co-worker for several years.  Managers knew about it.  The harassment stopped only when Walmart fired Jamie after her formal complaint.  Walmart paid $363,419, which constituted back pay plus $295,000 of the $300,000 cap on compensatory damages.

Family history questions violate GINA.  Employer nursing and rehab center offered jobs contingent on passing a physical.  Asking applicants about family history violated the Genetic Information Nondiscrimination Act.  138 applicants are now beneficiaries of a $110,400 settlement fund.

If not Bawdy, then Blackballed by JPMorgan Chase

Some of the women did not join in the “fun.”  The boring female mortgage bankers who not embrace the sexually charged behavior and comments, including from supervisory staff, did not get as many lucrative sales calls, training opportunities and other benefits of employment as the fun crowd, they alleged

EEOC called it a “sexist and uncivil atmosphere” in its class action sex discrimination lawsuit against JPMorgan Chase.  The employer must pay $1,450,000 split among 16 women.  Plus, the consent decree requires the employer to better retain data on call assignments so there’s proof to support or defeat future claims.

Void Settlement Agreements

Surprise!

When employee claimed federal agency breached the settlement agreement, EEOC voided the agreement and reinstated the charge of discrimination. The agreement to meet in two months to review progress on cross training was an agreement to negotiate. The agreement to “continue” with plans for cross training lacked consideration.

That was just one of a few agreements declared void by the EEOC and reported in its digest of decisions for Summer 2013.  (Yes, that’s the latest edition.)

In another case, the employer agreed to “open communication” with, abide by a contract, and maintain fair and equal treatment for all employees.  EEOC held that agreeing to comply with existing laws, rule and policies did not constitute consideration sufficient to support the settlement of the employment claim.  EEOC reinstated the complaint.

Now, on to the other settlements reported last quarter. Most settlements included other terms, such as training, posting legal duties, etc.

Sexual Harassment / Retaliation Settlements
Male orchard supervisor barraged male workers with sexual and threatening comments and physical contact.  Caressed faces, backs and buttocks.

$85,000

Verbal abuse, taunting gestures of a sexual nature, and perpetrator exposed himself in same-sex harassment case

$125,000

Office administrator reported sexually harassing calls from her supervisor.  Three days later, company escorted her out the door, alleging 6 reasons for termination.  Company settled retaliation suit.

$150,000

Plant manager found support for complaint of sexual harassment of subordinate employee.  Manager fired harasser.  Company reinstated harasser and fired manager.

$75,000

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

$65,000

Store manager harassed employees with comments and request for sexual favors.  Call to corporate hotline and complaint to assistant manager did not cure problem.

$27,500

Co-owner of restaurant frequently made offensive comments of crude or sexual nature in presence of plaintiff.  He also touched workers in sexual manner.  Severe and pervasive harassment caused plaintiff to quit, EEOC alleged.

$20,000

Disability Discrimination Settlements
Fired for not using medical leave form. Employer terminated nurse assistant because she submitted a doctor’s note, not the official employer’s form.

$25,000

Nursing home fired the cook for failing to report to work, despite doctor’s note advising employer that she needed breast cancer surgery and time to recover.

$50,000

Hospital reversed its decision to accommodate general practice doctor who has epilepsy by allowing her to limit her workday to 89 hours.  EEOC alleged termination for disability.

$215,000

Manufacturer fired assembler after two unrelated incidents required ambulance trips to the hospital.  EEOC alleged employer regarded her as having a disability.

$25,000

Racial Discrimination / Retaliation Resolutions
African-American employee complained about racially offensive graffiti.  Co-workers threatened employee with death if he complained more.

$50,000

Restaurant fired African-American worker three weeks after he complained about racially offensive displays.  Jury awarded $15,000 for emotional damages.  Judge awarded $41,000 back pay.

$56,000

Alabama construction company subjected three African-American employees to racial slurs.  Fired them when they complained.

$100,000

Equal Pay Settlements    Hotel paid women get services employees less than men.  Three class representatives shared settlement

$75,800

Public School paid certified woman art teacher $40,000 in her fifth year.  An uncertified male with no teaching experience got $44,000

$125,000

Pregnancy Discrimination cases

$40,000

$20,000

 Copyright, 2014, Jeff Merrick, Merrick Mediation

Not Exactly a Picnic.

sausageThe court file screamed, CONSTITUTIONALIST, POSSE COMMITATUS, and, most importantly for a mediator, NO COMPROMISE.

The “natural born citizen” challenged everything from the authority of the court, to proper service, to some of the most fundamental rules of law by which we conduct business and litigation.

My service as a volunteer mediator can be quite interesting.  My paid work includes lawyers who prefer to put their clients in separate rooms.  That’s much more predictable than sitting together with two unrepresented people in conflict.  My volunteer work can feel like a high-wire act without a net, which provides a fun challenge.

This time, I emphasized more than usual that I do not decide legal issues (such as overturning 200 years of legal precedent).  The parties would need to skip mediation if they wanted judgments.  Today, the only person to convince of their righteousness was each other, not me.

Eventually, the natural born citizen agreed to try talking with the corporate fabrication.

Then, I went about the process of facilitating a sharing of the true problems and issues.  As I’ve said before, a person who is not “frequent flyer” in mediation needs an emotional release before he or she is prepared to sign a legal release.  People who feel victimized need to let it out: business owners, employees, patients . . . everyone.  Unless a person has some mental disease, we all have the same basic needs.

Once each side had a chance to air her feelings and clarify facts, I separated them for an even more open venting and exploration of options, strengths and weaknesses.  Then, back in the same room, they worked fairly and efficiently toward agreement.

Perhaps my greatest satisfaction is to see positive change in people.  Adversaries walk in ready to explode like a sausage on a grill.  Sometimes, they leave like a satisfied guest who finished their beers, sausage and potato salad, thinking the world is okay, at least for today.

All of us finished this mediation feeling like the process worked well.

Jeff Merrick

Copyright 2014 by Jeff Merrick, Merrick Mediation

EEOC Settlement Data for 3rd Quarter

eeocThe Equal Employment Opportunity Commission (EEOC) announced settlements of 27 discrimination cases during the third quarter of 2013.  As usual, I will highlight what I found most interesting and summarize the settlement data on most of the other cases.

Title VII prohibits Gender Identity discrimination.

A supermarket paid $50,000 to settle with a former employee fired for being transgender.  Previously, the EEOC found that gender identity is covered by Title VII’s sex discrimination prohibition.  Macy v. Dept. of Justice, EEOC Appeal No. 0120120821 (2012).  EEOC noted that there have been “a steady stream of district court decisions” so holding.

It is dumb to fire the HR director.

“It’s Just Lunch,” the dating service, did not hire men for certain jobs.  The human resources director opposed the employer’s gender-based hiring practices.  So, IJL fired her.

Of course, the HR director knew where the bodies were buried, which cost the employer $900,000.  The whistleblower received about $130,000, and the rest was allocated for male applicants.

Rednecks cost employers.

“I don’t know why we don’t just kill all them towelheads,” was a fine example of speech that created a hostile working environment to former employee Adam Donmez, a Turkish / Palestinian Muslim.  Eventually, Adam quit and sued Swift Aviation, a Phoenix, Arizona company.  The employer paid $50,000 to Adam and now operates under a consent decree.

Hispanic workers in a Salt Lake City warehouse endured name calling like “[expletive] Mexicans” and “[expletive] you, mojado” [wetback].  Perhaps management encouraged such conduct with its policy against anyone speaking a language other than English.  The EEOC charged the company with national origin discrimination. The company settled for $450,000, rescinded its language policy and agreed to “extensive” injunctive relief.

Women over 50 – Beware.

The CEO wanted “younger and prettier” women to meet with potential customers and entertain them after regular work hours.  So, 53 year-old Toni Strength got the boot, and a 23-year old clerical worker took over most of her duties.  $140,000 settled the case.

AT&T paid $250,000 to settle with a woman aged 53 whom it fired while retaining lower-performing younger workers.

The following summarizes other claims and amounts paid, but it does not indicate conditions imposed by consent decrees.

Disability Amount
Post-partum depression.  Pretext:  the job is critical and needs to be filled.  Yet, it accommodated new hire’s request to delay start for three months. $90,500
Employer feared that someone might knock down employee with prosthetic leg.  Staffing agency recalled her.  Staffing agency paid.  EEOC is still pursuing employer. $100,000
Leg fracture while working.  Worker wanted wheelchair ramp and ability to use walker.  Employer fired her days after her request for accommodation. $125,000
Certified Nursing Assistant at rehabilitation facility did not want to supervise the residents’ smoking breaks because it aggravated her asthma and caused a severe asthma attack. $51,000
Employer denied extension of leave to recover from knee surgery. $75,000
Employer denied requests by deaf and hearing-impaired applicants for American Sign Language interpreters during training. $57,500
Employer refused to accommodate visually impaired employee. $20,000
Pregnancy Discrimination.  $100,000
Religious Discrimination.  New hotel managers stopped accommodating a Seventh-Day Adventist’s Sabbath. $45,000
Sex Discrimination. Employer fired a top female sales associate while opting to retain male sales associates with significant fewer sales.  The numbers don’t lie. $65,000
Race Discrimination.   Coal mining company excluded a class of African-American applicants from coal mining jobs in Kentucky.  $245,000
African-American entertainers in a gentleman’s club had segregated work schedules.  Management cut their hours when they complained. $50,000
African-American elevator mechanic, who worked for the company for 29 years, was laid off. The field superintendent retained Caucasian employees whose performance was worse. $35,000
Sexual Harassment. Female manager made sexual comments and propositions to three female subordinates.  She fired them when they complained to her boss. $302,000
Male manger propositioned, touched and leered at female employees. $215,000
Manager and cook subjected several women to sexually explicit words, sexual comments, propositioned them, and made threats of forced sexual acts. $91,000
EEOC pursued sexual harassment of workers at the Saipan workplace of Pacific Airport Services. $65,000
“Get rid of your boyfriend if you want to advance,” and other harassment of waitress. $25,000
Employee protested new hire because new hire harassed her at a prior workplace.  Employer fired the complainer. $22,500

 Copyright, 2013, Jeff Merrick, Merrick Mediation

Three mediator tools that I used last week.

photoLast week, Defendant’s initial counteroffer was about three percent (yes, 3%!) of the plaintiff’s initial offer.  Would the young, first-time plaintiff explode with anger and despair?  Especially after she shared her emotional, painful story for which she blamed defendant?

Tool 1:  Normalize the initial impasse.

An explosive set back was possible, but it did not happen, because I knew my job was to educate her.  I let her know that mediations often begin with offers that are far apart. High and low offers are how some people communicate they feel strong in their position. I explained that the first obstacle to settlement is overcoming the fear of being the first person to step into the “reasonable range” of settlement.

I used my favorite visual aid (pictured above) to “normalize” the situation.  THEN, I mentioned the counteroffer of 3%.

 Tool 2:  Get people thinking about what is the reasonable range.

I asked both parties to consider what they felt was the “reasonable range.” To their credit, both did.  Later, one party feared that their honest, reasonable range was not in the ballpark with the other party’s range, and they asked if I would check. In a confidential way, I determined that the parties’ opinions of the reasonable range differed too much.

Tool 3:  Ask. Don’t tell. 

When I reported back that the parties were not anywhere near the same settlement range, I had several options available to me, including:

  • Decide who I thought was less reasonable and “beat on them.”
  • Assume the parties could not keep working to find their own resolution and propose a “mediator solution.”
  • Simply be transparent and ask how I could help.

In my first few mediations, I tried too hard to settle the cases FOR the parties.  Since then, I’ve come to trust that people know what is best for themselves.  I see my role as helping THEM settle.  Giving people the time and space to come to their own conclusions is the more effective approach, I’ve found.

So, I asked them how they thought I could help them.

One party asked me to state my honest view of the merits.  This is where my 29 years of litigation experience and substantive knowledge of law helped.

I stated my view on how to analyze the value cases, generally.  Then, I applied that analysis to the facts put forth by both sides to the mediation.  I did NOT suggest any dollar figures.

Long story short, the parties continued working, and they settled their case.

 Jeff Merrick

Copyright 2013, Jeff Merrick, Merrick Mediation

EEOC Resolutions Announced in the Second Quarter

The Equal Employment Opportunity Commission (EEOC) announced settlements or verdicts of 27 discrimination cases during the second quarter of 2013.  As usual, I will highlight what I found most interesting and summarize the settlement data on all cases.

Family Medical History Questions Violated G.I.N.A.

With her temporary employment period ending, Rhonda Jones applied for a permanent job, and the employer sent her to its contract doctor for a medical exam.  The questionnaire asked Rhonda about the existence of certain diseases and conditions in her family, including heart disease, cancer, diabetes, and “mental disorders.”  The Genetic Information Nondiscrimination Act (GINA) “prohibits requesting family medical history,” according to the EEOC.

The employer’s doctor concluded that Rhonda also needed to be checked for carpal tunnel by her doctor.  Rhonda’s own doctor cleared her, but the company refused to hire her.  The EEOC charged the employer with violating GINA plus disability discrimination because it regarded Rhonda as having a disability (carpal tunnel syndrome).  Employer paid $50,000 to settle the claim.

Discrimination based on “Intellectual Disabilities”

Two cases highlight EEOC’s protection of those with “intellectual disabilities.”

In the first, new management of a fast-food restaurant demoted a floor supervisor to a janitorial position and cut his hours, which caused him to resign.  The employer paid $100,000 to the former employee and now must follow a three-year consent decree requiring it to hire an equal employment opportunity monitor, develop policies, and have a central tracking system for its 20+ restaurants.   It seams the future cost of the settlement will exceed the initial $100,000 settlement.

The second case sounds like a bad movie justifying the jury verdict of $240 million dollars.

Henry’s Turkey Service took advantage of 32 men with intellectual disabilities for 20 years. The employer verbally and physically harassed the men, restricted their freedom of movement, required the to live in disgusting living situations, and did not provide adequate medical care.  Enlightened employers know better than to call workers “retarded,” use handcuffs, or force workers to carry heavy weights as punishment.  This employer, however, figuratively emasculated the men who eviscerated their turkeys.

Affirmative Action as Remedy to Gender Discrimination

A Cleveland manufacturer must offer no fewer that 40 jobs to women and pay $700,000 as part of a consent decree settling a class action lawsuit.  EEOC alleged the employer discriminated in hiring, promotion and tolerated workplace harassment.  The company failed to comply with recordkeeping requirements, too.

Other Resolutions

Although I only mention the dollar amounts, the settlements typically include other provisions, including training, posting, and monitoring.

Morning Sickness – Pregnancy, Disability & Retaliation.   Employer denied a pregnant employee’s request to move closer to restroom for severe nausea and vomiting.  Management also made negative comments.  Employer failed to engage in interactive process.  When her husband complained, the company demoted and eventually terminated him.  Employer paid $70,000.  In a separate case, the employer demanded medical releases from a pregnant employee, suspending her until it received the releases.  It paid $42,000 to settle.

$20 Million verdict (before applying Title VII caps) to eight women for sexual harassment.  Sexual propositions, physical touching, sexual banter were common.  The employer fired a manager for who sought to address the problems.  Jurors do not like egregious facts; Employers need to settle those cases.

Employees not need to call in from the hospital.  Employer knew about employee’s condition and that he was hospitalized.  Nevertheless, it fired him for failing to call in every day.  It paid $50,000 and must follow a consent decree for 5 years.

Race Discrimination.  Employer’s anti-harassment policy was “unreasonable as a matter of law” because it lacked a way to bypass the perpetrator.  The employer paid three former employees a total of $230,000 for enduring the N-word and other such comments and conduct.  A different employer paid $150,000 to an African-American employee who endured slurs and retaliation after he reported it.

National Origin Discrimination.  One employer paid $250,000 to settle the claim that it paid Hispanics less than non-Hispanics.  Another employer paid $360,000 because it harassed and fired Hispanic employees.

Age Discrimination.  Employer RIFed the older guys, ages 48, 51 and 62.  It paid $210,000. Another employer paid $90,000 because it refused union referrals of journeyman linemen, ages 72 and 61, but took younger referrals.

Other Disability Discrimination Settlements.  

The following  table shows number of employees involved, but it does not indicate conditions imposed by consent decrees.

Disability

Amount

#
Stroke-like, temporary facial harassment. Terminated.

$40,000

1

Bipolar disorder.  Refused to reemploy following a manic episode, despite medical clearance.

$100,000

1

Bank terminated employees at the end of their medical leaves.  It did not offer any accommodations.

$400,000

14

Chronic back pain with radiculopathy down legs. Employer refused to return employee to work or consider accommodations.

46,000

1

 Other Sex Discrimination Resolutions.   

Summary

Amount

#
Employer did not promote woman and lied to her.  It told her they were not going to fill the position, but told a male that they would.  $475,000 of verdict was for punitive damages.

$500,000

1

Three temporary workers suffered vulgar sexual remarks and unwanted touching. Retaliation against them and a man who complained.  $850,000 of verdict was for punitive damages.

$1.5M

4

Women employees of prison management company suffered verbal and physical harassment. Company entered into consent decree during trial.

$140,000

2

Equal Pay Act. Company did not pay woman same salary as male predecessor.

$65,000

1

Supervisor demanded sexual favors.  Company fired or forced out complaining co-workers.

$650,000

5

Honey Baked Ham terminated the woman manager who was harassed and complained on behalf of herself and others.

$360,000

>1

Supervisor verbally abused seasonal farm worker, sought sex, and encouraged domestic violence against her by her husband.

$150,000

1

Crude comments, unwanted physical contact toward a home health care worker

$16,000

1

Vulger comments, sexually explicit pictures in workplace

$15,000

1

Jeff Merrick, Employment Law Mediator
Copyright 2013

EEOC Verdicts & Settlements During the First Quarter

The Equal Employment Opportunity Commission (EEOC) announced settlements and verdicts of 31 discrimination cases during the first quarter of 2013.  This post highlights two topics I found most interesting and then provides settlement data on all cases.

Money to Pay the Taxes

What caught my eye in EEOC v. Radio Shack, (D. Colo. # 10-cv-02365), was a supplemental award to help the fired employee pay his additional tax burden.   A jury found that Radio Shack unlawfully retaliated against its employee for his age discrimination complaint, awarding $187,706 in back pay.  The EEOC sought front pay in lieu of reinstatement plus money to offset the increased tax burden.  The judge agreed, awarding $199,470 for front pay plus $101,657 to compensate for taxes.

Egregious Harassment = ~ $200,000.

It is hard to believe that employers still tolerate egregious racial and sexual harassment. Here are four examples reported by the EEOC:

For African Americans, the 21st century workplace still includes verbal attacks including, being called “N- – -r,” “monkey,” “boy,” “coon” and being shown a noose with the message, “This is for you.  Do you want to hang from the family tree?” A jury awarded $200,000 in compensatory and punitive damages to two African-American men who suffered from this conduct, despite complaining to the manager and the owner of a North Carolina trucking company.

A potato wholesaler paid $255,000 to settle claims arising from a supervisor who repeatedly harassed multiple women.  The warehouse supervisor made sexual comments, groped women, exposed himself and solicited sex.

A New York company who supplies labor and construction services to the power industry paid $190,000 to an African American worker who suffered harassment and was fired shortly after complaining.  The foreman insulted the man with racial jokes, insults, and derogatory stories referring to African Americans as stupid and incompetent.  Also, he tripped him several times and once kicked him in the buttocks.

Emmert International paid $180,000 to two employees.  One suffered frequent racial slurs, including the “N-word,” and the other was called a “N—lover.”

The above examples involve occupations that had been dominated by white males, including trucking, construction and warehouse work.  The concept that the “good ‘ol boys” get a pass on unacceptable conduct may be long gone in the law, but it seems to persist in reality.

Other settlement data follow.

Although I only mention the dollar amounts, the settlements typically include other provisions, including trainiing, posting, and monitoring.

Pregnancy Discrimination.
EEOC reported pregnancy discrimination settlements with four employers in the following amounts: $31,000, $20,000, $37,500 & $27,500.

Other Sex / Retaliation Settlements & Verdict.
The world’s largest Burger King franchise paid $2.5 Million to settle claims of egregious sexual harassment by managers against 89 women, including many teenagers.  The conduct went way beyond offensive comments.  It included strip searches, propositions, stalking and even rape.

A Chicago bar and grill that allegedly “fostered a culture” where sexual harassment and retaliation against women went unchecked settled before answering the complaint for $100,000.

After stipulating to back pay, the EEOC and a mall store tried the case for compensatory damages of teenage employees subjected to allegedly “severe sexual harassment.”  Some of the girls quit, and another had her hours reduced for resisting sexual harassment.  “$30,000,” said the jury.

A restaurant in Wisconsin paid $41,000 to settle claims by waitresses of crude remarks and groping breasts.  The owner did not stop the manager, but, instead, fired some of the waitresses for their complaints.

A bakery paid $220,000 because the owner allegedly subjected at least 19 women to sexual comments, innuendo and unwanted touching.  Some women quit their jobs because of the harassment.

An auto dealership paid $85,000 to three women fired one week after they complained about sexual harassment by the sales manager.

Religion.
When the job interview is primarily about religious activities and beliefs, that’s a problem.  It cost Voss Electric, from Tulsa, Oklahoma, $82,500.  The applicant was religious, and the interviewer sent information on the applicant’s religion to the branch manager, who then really grilled the applicant about his religion.  The employer hired someone else, whose religious beliefs lined up better.

An employee requested a day off for a Jehovah’s Witness convention.  The employer denied the request.  When the employer attended the convention anyway, the employer fired her.  Ozarks Electric paid $95,000 plus entered into a consent decree. Among other things, it agreed to establish an appeals process to address religious accommodation requests.

Rastafarian abuse, including threats and the use some “N-words,” cost an employer $135,000. A previous consent required to the dress code to accommodate Rastafarian employees.

A young woman’s religion required her to wear skirts.  During her interview for a job at Burger King, the manager said they would accommodate the request.  The employer did not honor the request, and paid $25,000 to settle her claim of religious discrimination.

Waive future claims or we fire you.  Cognis Corporation required existing employees to sign an agreement prohibiting the employee from filing charges of discrimination as a condition of continued employment – even for adverse actions that had yet to occur.  One employee refused to sign, and Cognis fired him. The U. S. District Court held that this violated Title VII, leaving damages for the jury. Cognis paid $500,000 to settle with six employees to whom Cognis said, “Sign if you want to work here.”

Age: Refusal to Hire.  A college paid $125,000 to a 64-year-old applicant for a tenure track assistant professorship.

Disability Discrimination Settlements.  Disability discrimination cases were the most numerous.  The following lists the disability, amount of settlement and number of complainants.

Disability Amount #
Crohn’s Disease. University’s lateness and attendance policy violated the ADA because it lacked exceptions for reasonable accommodations. $92,500 1
Traumatic Brain Injury.  New restaurant manager fired server because of his “mistaken beliefs about what individuals with disabilities can accomplish.” $65,000 1
Stroke.  Employer failed to accommodate an extension of leave time. $50,000 1
Heart Attack. Employer advertised for replacement property manager on the same day it learned of heart attack. $37,000 1
Bipolar disorder.  Fired for taking prescribed medication. $50,000 1
Bipolar disorder.  Fired after medical leave $49,900 1
Deaf. Restaurant demoted prep chef to janitor, cut his hours because of disability and his complaints, and then fired employee. $47,814 1
Hearing Loss.  Employer refused to engage in the interactive process and fired employee for requesting accommodation. $130,000 1
Bilateral Amputee. Refusal to rehire employee. $350,000 1
Degenerative Joint Disease.  Employer refused accommodation. $50,000 1
Arthritis / Retaliation.  Supervisor made fun of employee’s limp.  She and co-worker reported harassment.  Both forced to resign $77,000 2

Jeff Merrick, Employment Law Mediator
Copyright 2013

Book Review: Narrative Mediation: A New Approach to Conflict Resolution

 

Narrative Mediation“Narrative mediation” focuses on perceptions of the parties as revealed by their stories.  If a party says, “My boss has always been out to get me!” then that is the party’s reality, regardless of any objective truth.  Such “totalizing descriptions” crowd out facts, and the mediator’s job is not to tell parties they are wrong, according to the authors of Narrative Mediation: A New Approach to Conflict Resolution.  Instead, mediators should help the parties develop a new story, a new narrative pathway out of the dispute.

Authors John Winslade and Gerald Monk contrast their approach with “mainstream” mediation theories, which include identifying the parties’ interests and helping the parties resolve conflicts in ways that maximize satisfaction of those interests.   Narrative mediation concentrates less on problem solving and more on developing relationships that are incompatible with conflict.  Narrative mediators help the parties change their relationship so that they can envision and articulate a better future in which resolving the dispute is but one element.

The authors outline and explain three phases of narrative mediation: (1) engagement (2) deconstructing the conflict-saturated story, and (3) construction of an alternative story.

First, mediators must listen to the stories of conflict.  We should build trust by conveying an understanding of the depth of the parties’ distress.  We should listen for the intersections between the parties’ narratives and identify past interactions that sheds some gray on the parties’ black and white views.

Next, the narrative mediator works to deconstruct or destabilize the “conflict-saturated” stories with “curious exploration” and “externalizing conversations.”

Curious exploration contrasts with telling people how things really are. Instead, narrative mediators subvert problem stories with inquiries, such as  “What do you mean by ‘trust?’”  “Have there been times when you DID work well together?”  By uncovering specific behaviors behind the labels, one can address behavior.  By recovering positive experience, the negative story loosens its grip, which creates space for alternative views.  Once the parties remember and acknowledge their good history, they can use it to move forward.  Deconstructing negative relationships and reconstructing a better relationship is the primary task of narrative mediation, “in preference to the pursuit of an agreed-upon solution.”  In practice, clam the authors, relationship building shortens the negotiations phase.

Narrative mediators employ a move called “externalizing the conversation.” The mediator speaks of the problem as if it were a third person acting upon both parties.  “How has this lack of trust impacted you?”  “Are you willing to let this conflict continue to worsen things until a judge decides, or are you interested in working on damage control sooner?”  Blaming the problem instead of the people creates a chance for the parties to work together against a common enemy.

After deconstructing the conflict story, the third step for narrative mediation is to construct an alternative narrative.  The authors discuss various scenarios and techniques, many of which are not unique.  The difference, in my opinion, seems to be the outlook of the parties if narrative mediation succeeds in transforming the relationships of the parties.  For example, instead of an employer grudgingly agreeing to pay a justly fired employee extortion money, the employer now sees that both sides were victims of a circumstance.  Instead of the fired employee being convinced of illegal intent by the boss, the employee now understands management’s true reasons for the termination.  Obviously, if both parties humanize and understand the other, they will sleep better, with or without a settlement.

So, is “narrative mediation” really so different from other approaches to mediation?  Yes and no.

In litigation, often a judge or retired judge serves as mediator.  Often judges and other mediators assume the role of evaluating the strengths and weaknesses of case and encouraging the parties to settle to avoid the risk of a worse outcome at trial.  Certainly, that evaluative approach differs drastically from “narrative mediation.”

However, I’m not so sure that narrative mediation differs all THAT much from the classic interest-based approach articulated by William Ury in his trilogy of books.  (Getting to Yes, Getting Past No and The Power of a Positive No).  Ury, too, instructs us to “separate the people from the problem.” (Getting to Yes, Chap. 2).  He wrote, “Before you can negotiate, you need to create a favorable climate.  You need to defuse the anger, fear, hostility and suspicion of the other side.”  (Getting Past No, p. 169).  Ury’s conclusion is entitled “Turning Adversaries into Partners,” in which he emphasized, “Your goal is not to win over them, but win them over.”  (Getting Past No, p. 160).

Also, does the concept of an “alternative narrative” differ that much from merely encouraging a party to envision a future with their conflict resolved?  Perhaps the authors describe a difference in depth if not a difference in concept.

Whether or not Narrative Mediation describes a new approach or just uses pedantic language to describe an existing approach, it was a useful (although difficult) read.  The authors emphasized that some parties enter negotiations constrained by their beliefs, which are real to them regardless of the evidence.  The authors provide tools to loosen the chains of hurt, distrust and other impediments of the “conflict-saturated” narrative.  They describe a method to facilitate a new way of thinking about the situation so that the parties can resolve their dispute and move forward.

I think the approach is most useful with parties in a relationship that will continue following settlement.  Also, I expect to use elements of the approach with unsophisticated parties who are wedded to their opinions and beliefs.  However, I think the approach has limited utility with frequent users of mediation, such as insurance adjusters.

Jeff Merrick, Merrick Mediation
Copyright, 2013

Buddha the Mediator

Buddha in Abhaya mudra
Buddha in Abhaya mudra

We’ve all heard of Buddhist Meditation.  But have you heard the one about Buddha the Mediator?

Today, Allyson and I visited the Buddha Tooth Relic Temple in Singapore.  One floor of the temple is a museum, dedicated to collecting, preserving and researching Asian Buddhist artifacts.  The museum experts described the Buddha Abhaya gesture, or mudra, pictured here, as, “Pacifying the Relatives, after an incident where Buddha mediated with two feuding but related families over the water used for irrigation.”

The key portion of the gesture is the right hand, facing outward.  Many authorities say the gesture symbolizes fearlessness, or protection, peace and the dispelling of fear.  Another described the gesture as imparting fearlessness or reassurance. 

All of those descriptors should apply to mediators.  Mediators join with two parties who often begin the negotiations angry and fearful that their dispute will only escalate and not resolve.  I have been in joint sessions where people screamed at each other, yelled at me, insulted each other, and sobbed uncontrollably.  Just as Buddha used the gesture to calm an angry elephant that was charging him, mediators must, above all, model strength, optimism, and confidence. We must settle down the parties before the parties settle their disputes.

A mediator must dispel fear and reassure parties.  Successful negotiations require people to release or let go of something.  I’m not just talking about one party releasing a legal claim and the other party letting go of money.  That is only part of the typical situation.  Almost always, at least one side must work through deeply-held feelings of righteousness, resentment, hurt or other emotion.   Sometimes, people fear settlement will allow the other party to get the better of him or her one last time. The mediator must encourage people to work through these feelings until they let go of their fears and want to make peace.

Jeff Merrick, Merrick Mediation
Copyright, 2013

EEOC Settlements Announced in January

The Equal Employment Opportunity Commission (EEOC) announced settlements of 15 employment law cases in January 2013.  This post briefly summarizes them.  In addition to the monetary compensation noted below, many settlements included consent decrees, under which the employer must monitor their workplaces, provide training on anti-discrimination law and / or report any violations.

Waive future claims or we fire you.
One case is particularly interesting.  Cognis Corporation required existing employees to sign an agreement prohibiting the employee from filing charges of discrimination as a condition of continued employment – even for adverse actions that had yet to occur.  One employee refused to sign, and Cognis fired him. The U. S. District Court held that this violated Title VII, leaving damages for the jury.

The employer paid $500,000 to settle with the plaintiff and five other employees to whom Cognis said, “Sign if you want to work here.”

Age: Refusal to Hire.  A college paid $125,000 to a 64-year-old applicant for a tenure track assistant professorship.

Race.  Emmert International paid $180,000 to two employees.  One suffered frequent racial slurs, including the “N-word,” and the other was called a “N—lover.”

Religion.  A young woman’s religion required her to wear skirts.  During her interview for a job at Burger King, the manager said they would accommodate the request.  The employer did not honor the request, and paid $25,000 to settle her claim of religious discrimination.

Sex / Retaliation Settlements.
The world’s largest Burger King franchise paid $2.5 Million to settle claims of egregious sexual harassment by managers against 89 women, including many teenagers.  The conduct went way beyond offensive comments.  It included strip searches, propositions, stalking and even rape.

A restaurant in Wisconsin paid $41,000 to settle claims by waitresses of crude remarks and groping breasts.  The owner did not stop the manager, but, instead, fired some of the waitresses for their complaints.

A bakery paid $220,000 because the owner allegedly subjected at least 19 women to sexual comments, innuendo and unwanted touching.  Some women quit their jobs because of the harassment.

An auto dealership paid $85,000 to three women fired one week after they complained about sexual harassment by the sales manager.

Disability Discrimination Settlements.
Disability discrimination accounted for more than one-half of the settlements announced in January.  Often there was a retaliation component, too.  The following lists the nature of disability, amount of settlement and number of complainants.

Disability

Amount

#

Heart Attack. Employer advertised for replacement property manager on the same day it learned of heart attack.

$37,000

1
Bipolar disorder.  Fired for taking prescribed medication.

$50,000

1
Bipolar disorder.  Fired after medical leave

$49,900

1
Deaf. Restaurant demoted prep chef to janitor, cut his hours because of disability and his complaints,  and then fired employee.

$47,814

1
Hearing Loss.  Employer refused to engage in the interactive process and fired employee for requesting accommodation.

$130,000

1
Bilateral Amputee. Refusal to rehire employee.

$350,000

1
Degenerative Joint Disease.  Employer refused accommodation.

$50,000

1
Arthritis / Retaliation.  Supervisor made fun of employee’s limp.  She and co-worker reported harassment.  Both forced to resign

$77,000

2

Jeff Merrick
Copyright 2013

Big news! Employment Law Mediation Instead of Litigation.

After nearly one year as a mediator and 40 mediations, I have stopped representing either employers or employees as an attorney.  Now, for employment law, I serve only as an impartial mediator.  I hope you will consider me the next time your clients want to mediate.

For my first eight years of practice, I counseled and defended employers.  For my last ten years, I counseled and represented employees.  As an attorney, I was pleased (and relieved) when my clients obtained some measure of justice.  However, the human costs and financial impacts of employment litigation concerned me.  As a mediator, I feel terrific when I help people staunch the emotional and financial bleeding, put their disputes behind them, and move forward.

Mediating employment law disputes allows me to use my substantive knowledge of employment law and litigation, plus my understanding of the interests and motivations of employers, employees and their attorneys.  Although I continue my law practice in personal injury actions, my days as an employment lawyer are over as I build my employment law mediation practice.  I look forward to helping more employers and employees resolve their disputes.

Jeff  Merrick

© 2012 by Jeff Merrick, Merrick Mediation

Book Review: “The Tao of Negotiation.”

The Tao of Negotiation

Do not avoid or fear the pain of conflict.  Stay with that pain: watch it, accept it, and embrace it, urge Joel Edelman and Mary Beth Crain, authors of The Tao of Negotiation.  They describe their book as practical guide to “conflict enlightenment” written for “warriors of peace.”  Drawing inspiration from Lao Tsu, the Dalai Lama, and Ghandi, the authors assert that success in negotiation requires the opposite of meeting conflict with more conflict.  However, that does not mean passively giving in.  Instead, they state:

When we negotiate from the perspective of the Tao, we study the terrain, plan our strategies.  We are not passive; we are aware, at all times, of the stirrings in the bushes, the footsteps of the intruders and the proper way in which to meet them and disarm them.  We are in inner control; outer events respond accordingly.”

Although the authors’ viewpoint might be Eastern, the object they view – disputes and dispute resolution – is the same as others who have written on the topic.  When stripped of the Taoist wrapping paper, their message does not differ too much from many other writers and teachers on the topic.  The essentials remain: (1) honestly assess the parties’ interests, (2) possess the capacity and desire to resolve the conflict, (3) ground discussions in the present and not the past, (4) attempt to address as many of the interests of the parties as possible to achieve a sustainable resolution.

The authors differ from some other authors is their premise that a conflict can be resolved even if only one party wants to amicably resolve the conflict.  They assert if the willing party possesses the necessary tools, then he or she is likely to resolve the conflict.  This book is written for people facing conflict, not for mediators.  In effect, it tries to teach some of the concepts and tools of dispute resolution that good mediators already have in their “tool kits.”  It has chapters on the nature of conflict, how to identify and deal with different personality types and on specific conflict areas, including personal relationships, business partnerships, and workplace disputes.

Although The Tao of Negotiation provides a fun twist on the topic and reinforces some basic principles, it is probably too basic for a mediator.  On the other hand, for non-mediators, the book provides a pleasant primer on (1) the benefits of conflict, (2) how to analyze conflict and prepare to address it, and (3) encouragement to press forward to resolve conflicts that arise in everyone’s life.  I think the book could be especially useful for young people trying to figure out the world and for peace-loving people who despise and avoid conflict.

© 2013, Jeff Merrick, Merrick Mediation Services

www.MerrickMediation.com

 

 

 

 

WHO needs mediation, and WHAT do they need?

Competent, experienced lawyers can agree upon settlement values. Other frequent mediation participants readily comprehend the benefits of settling. We mediators, I believe, earn our money by helping the person — plaintiff or defendant — for whom mediation is a one-time or rare event.

In mediation, we ask people to give up their “day in court.” Yet, people want to tell their stories. They want to feel heard and understood. Making people feel understood is the critical first step, which separates the best mediators from the rest.

VECS is the acronym for validate, empathize, clarify and summarize. The late Justice Betty Roberts was a master of VECS. Open-ended questions allow a person to talk about what THEY want to talk about. When allowed to talk, most people (non-lawyers) do not start talking about legal precedents or recent jury verdicts; they talk about what’s eating at them. People want to unload about the injustice of being fired or the injustice of being legally extorted by a disgruntled former employee. People want to talk about how hard they work and how they are suffering. People want to tell me why the adverse party is unworthy.

Betty Roberts was excellent at letting people express their thoughts and feelings FIRST. To be successful, both sides must feel like today – this mediation – is their “day in court.” Justice Roberts and the best mediators give parties their “hearing” through skillful listening / VECSing. Once people feel heard, (1) they can address their other interests, (2) they can comprehend the opportunities afforded by mediation, and (3) they can “let go.” For many people, emotional release is a prerequisite to a legal release.

VECSing also builds trust. People do not know the law. They rely on their lawyers, as reinforced by the mediator. If the mediator connects with the parties through VECSing, then people will trust the mediator, later, when it is time to help them “reality check.”

By contrast, as an attorney, I once represented a woman who simply walked out of a mediation. The mediator had skipped the step of empathetic listening. He omitted the trust building. Instead of looking her in the eye and encouraging her to tell her story, he sat back and paged through his notebook as he recited some of defendant’s points. Within the first 15 minutes, the mediator used legal jargon as if my GED-level client would understand. Even if she had been a law student, the mediator’s words were as likely to take root as tossing garden seeds onto a frozen mountain lake for two reasons. First, if people are corked up with emotion or itching to tell their story, then they are not listening. Second, when a client does not connect with a mediator, she does not trust him.

The more mediation becomes routine to attorneys and mediators, the higher the risk that we will skip or gloss over the building blocks for successful mediations. Attorneys must remember to prepare each client thoroughly. Mediators, too, must determine what each side needs to achieve closure, both emotional and legal. For mediators, that starts with giving the parties his or her undivided attention, letting them speak, asking clarifying questions, and summarizing in a way that makes each person feel like he or she has been truly understood.