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Mediation in the Workplace
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Mediation in the Workplace


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Preparing to mediate your workplace dispute.

Preparing to mediate your workplace dispute.

Published in: Business

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  • 1. Media&ng  Workplace  Disputes  By  Lorene  F.  Schaefer,  Esq.  Mediator  &  Workplace  Inves&gator  www.OneMedia&  © Lorene F. Schaefer, Esq.
  • 2. Employee Lawsuits Are Costly Costs to defend typical employee lawsuit - $150,000+ Length of time (including appeals) – 2 to 4 years Non-Economic Costs Stress, anger, distraction Lost productivity Low morale/employee turnover© Lorene F. Schaefer, Esq.  
  • 3. Dispute Resolution ContinuumHigher Control Lower ControlLower Costs Higher CostsParties Decide Outcome Neutral Decides OutcomeNegotiation Mediation Arbitration Judge JuryInformalFormal© Lorene F. Schaefer, Esq. www.OneMediation.comPrivatePublic
  • 4. What is Mediation?  Informal process that uses neutral, third-partyto assist parties in finding mutually acceptable resolution  Not an adjudication  Mediator does not decide what is “fair” or “right”  Mediator cannot and does not force settlement  Mediator will seek concessions© Lorene F. Schaefer, Esq.
  • 5. Why Mediate?  Private & Confidential  Participants Have Ownership of Process& Decisions  Opportunity for Better Results  Quicker Resolution  Decreased Stress, Disruptions, &Distractions in the Workplace  Creative Solutions to Problems© Lorene F. Schaefer, Esq.
  • 6. Selecting a MediatorExperienced Employment AttorneyNeutral & TrustworthyFlexibility of StylesMediation Training & ExperienceGood Sense of Humor©Lorene F. Schaefer, Esq.
  • 7. Preparation is Key to SuccessKnow Your Case (Best,Worse, Most Likely)Submit Good, Solid Pre-Mediation Brief or HaveTelephone Call With MediatorDetermine How You Will Present (Charts, Verbal)Agree on Who Will Say What inOpening & Joint SessionsObtain Settlement Authority Outline Negotiation Strategy©Lorene F. Schaefer, Esq.
  • 8. Negotiation Strategy  Develop a strategy but remain flexible.  Will You Make First Offer? What Will It Be? Do You Want to Setthe Expectations or Manage Them?  Let the Negotiation Flow – Never Try to Short Circuit It  How Will You Use Your Evidence In Mediation?  “Back Pocket Approach”  “Trickle”  “Smoking Gun”©Lorene F. Schaefer, Esq.
  • 9. A Special Word About Settlement Authority Lawyers don’t settle cases, clients do Defining “Full Settlement Authority” Don’t forget possibilities other than $ Good faith negotiations  Do you want to have to “phone home?”Apology?Letter ofReference?RetirementParty?©Lorene F. Schaefer, Esq.
  • 10. What to Expect in a MediationMediator’s Opening CommentsOpening Comments of Attorneys & ParticipantsJoint Discussion to Explore Issues & Ask QuestionsCaucus(es) – Separate Private Meeting(s) with Each PartyReconvened Joint Session(s)Resolution & ClosureThough there is no set format, the following are typical phases©Lorene F. Schaefer, Esq.
  • 11.   Opening statement – opportunity to speak and listen to otherside without “filter” of lawyers.   Listen, Listen, Listen – Opportunity to deal with emotionalobstacles – “Day in Court”  Speak directly, but politely – Avoid rude behavior  Discuss from perspective of what reasonable fact finder likelyto conclude vs “what really happened”  Ask clarifying questions – but Respect, Respect, RespectOpening Statements & Joint Session©Lorene F. Schaefer, Esq.
  • 12. Private Caucuses  Be Prepared – Mediator Likely Will AskClient More Direct Questions  Anticipate – “What is Your SettlementAuthority?”   Additional Fact Sharing  Confidential Designations  Use the Mediator as a Sounding Board forNegotiation Strategy©Lorene F. Schaefer, Esq.
  • 13. “The Dance” & Talking Numbers  What motivates the decision maker(s) in theother room?  Recognize the Mediation “Dance” – Don’t be TooAnxious to Negotiate $ – Allow “Day in Court”  The Rule of Reason – Be Ready to ArticulateEmployer’s “Why” & Probe Employee’s “Why”  Constantly Re-Evaluate Strengths & Weaknesses  Determine Settlement Range and Value©Lorene F. Schaefer, Esq.
  • 14. Documentation & Closing the DealSigned Term Sheet or Settlement Agreement①  Parties②  Claims③  Timing of Performance ④  Release⑤  Dismissal Pending Actions⑥  Confidentiality⑦  Agreement Not to ExecuteAny Existing Judgment⑥  No Admission of Fault⑦  Remedies for Breach©Lorene F. Schaefer, Esq.
  • 15. Be Prepared – Other Potential TermsAlthough not always included, the following terms are sometimes negotiated:   Mutual Non-disparagement   References  Non-Compete  Non-Solicit of Customers  Non-Solicit of Employees  Charitable Contributions  No Re-Apply   Joint Press Release  $ Paid Over Time  Outplacement  Sensitivity Training  Regret or Apology ©Lorene F. Schaefer, Esq.
  • 16. ResolvedCongratulations!!©Lorene F. Schaefer, Esq.
  • 17. ResolvedFollow-Up - Do Not Give UpMediationis a Process. Not anEvent.Use Your Mediator!!!©Lorene F. Schaefer, Esq.
  • 18.  Thank You!My Blog: F. Schaefer, Esq.www.OneMediation.comEmail: