Preparing to mediate your workplace dispute.

1. Media&ng
Workplace
Disputes
By
Lorene
F.
Schaefer,
Esq.
Mediator
&
Workplace
Inves&gator
www.OneMedia&on.com
© Lorene F. Schaefer, Esq. www.WinWinHR.com

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. www.WinWinHR.com

3. Dispute Resolution Continuum
Higher Control
Lower Control
Lower Costs
Higher Costs
Parties Decide Outcome
Neutral Decides Outcome
Negotiation Mediation Arbitration Judge Jury
Informal
Formal
© Lorene F. Schaefer, Esq. www.WinWinHR.com www.OneMediation.com
Private
Public

4. What is Mediation?
 Informal process that uses neutral, third-party
to 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. www.WinWinHR.com

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. www.WinWinHR.com

6. Selecting a Mediator
Experienced Employment Attorney
Neutral & Trustworthy
Flexibility of Styles
Mediation Training & Experience
Good Sense of Humor
©Lorene F. Schaefer, Esq. www.WinWinHR.com

7. Preparation is Key to Success
Know Your Case (Best,
Worse, Most Likely)
Submit Good, Solid Pre-
Mediation Brief or Have
Telephone Call With Mediator
Determine How You Will
Present (Charts, Verbal)
Agree on Who Will Say What in
Opening & Joint Sessions
Obtain Settlement Authority
Outline Negotiation Strategy
©Lorene F. Schaefer, Esq. www.WinWinHR.com

8. Negotiation Strategy
 Develop a strategy but remain flexible.
 Will You Make First Offer? What Will It Be? Do You Want to Set
the 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. www.WinWinHR.com

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 of
Reference?
Retirement
Party?
©Lorene F. Schaefer, Esq. www.WinWinHR.com

10. What to Expect in a Mediation
Mediator’s Opening Comments
Opening Comments of Attorneys & Participants
Joint Discussion to Explore Issues & Ask Questions
Caucus(es) – Separate Private Meeting(s) with Each Party
Reconvened Joint Session(s)
Resolution & Closure
Though there is no set format, the following are typical phases
©Lorene F. Schaefer, Esq. www.WinWinHR.com

11.  Opening statement – opportunity to speak and listen to other
side without “filter” of lawyers.
 Listen, Listen, Listen – Opportunity to deal with emotional
obstacles – “Day in Court”
 Speak directly, but politely – Avoid rude behavior
 Discuss from perspective of what reasonable fact finder likely
to conclude vs “what really happened”
 Ask clarifying questions – but Respect, Respect, Respect
Opening Statements & Joint Session
©Lorene F. Schaefer, Esq. www.WinWinHR.com

12. Private Caucuses
 Be Prepared – Mediator Likely Will Ask
Client More Direct Questions
 Anticipate – “What is Your Settlement
Authority?”
 Additional Fact Sharing
 Confidential Designations
 Use the Mediator as a Sounding Board for
Negotiation Strategy
©Lorene F. Schaefer, Esq. www.WinWinHR.com

13. “The Dance” & Talking Numbers
 What motivates the decision maker(s) in the
other room?
 Recognize the Mediation “Dance” – Don’t be Too
Anxious to Negotiate $ – Allow “Day in Court”
 The Rule of Reason – Be Ready to Articulate
Employer’s “Why” & Probe Employee’s “Why”
 Constantly Re-Evaluate Strengths & Weaknesses
 Determine Settlement Range and Value
©Lorene F. Schaefer, Esq. www.WinWinHR.com

14. Documentation & Closing the Deal
Signed Term Sheet or Settlement Agreement
① Parties
② Claims
③ Timing of Performance
④ Release
⑤ Dismissal Pending Actions
⑥ Confidentiality
⑦ Agreement Not to Execute
Any Existing Judgment
⑥ No Admission of Fault
⑦ Remedies for Breach
©Lorene F. Schaefer, Esq. www.WinWinHR.com

15. Be Prepared – Other Potential Terms
Although 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. www.WinWinHR.com

16. Resolved
Congratulations!!
©Lorene F. Schaefer, Esq. www.WinWinHR.com

17. Resolved
Follow-Up - Do Not Give Up
Mediation
is a
Process.
Not an
Event.
Use Your Mediator!!!
©Lorene F. Schaefer, Esq. www.WinWinHR.com

18. Thank You!
My Blog: WinWinHR.com
@WinWinHR
Lorene F. Schaefer, Esq.
www.OneMediation.com
Email: Lorene@WinWinHR.com