Sanns Mediation World of ADR

Last week, the U.S. Supreme Court issued a ruling in the case of Gross vs. FBL Financial Services which makes it much harder for employees to prevail on claims of age discrimination.  A plaintiff used to have to prove that age was a factor in their adverse job action — but it did not need to be the only factor. The employer, in response, could show that it had other reasons for the termination or demotion beyond the age of the employee.

In a 5-4 ruling, the court said that plaintiffs in ADEA cases  have the complete burden of proving that age was the deciding factor in their dismissal or demotion.  Given that the employee did not take part in the internal company deliberations leading to the termination or demotion, it will be very hard if not impossible to prove.

Age discrimination complaints to the Equal Employment Opportunity Commission (EEOC) rose by 29% in 2008 as the economy led to more layoffs. Congress may consider a change in the law to re-instate the older methodology.

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A California court recently upheld an award by an arbitrator for an amount in excess of $4 billion.  Paul Thomas Chester had sued his former employer, affiliated companies and company founder Timothy Ringgenberg for wrongful termination.  The case ended up in front of an arbitrator (a private judge).  How did an award like this end up being so large for a single plaintiff?  A number of compounded mistakes by the defendant.

First, the defendant apparently terminated a high level employee without cause and after he sued, moved to compel arbitration.  Then the defendant did not participate in discovery as requested.  Then the defendant decided to fire his attorney and represent himself and his companies (court rules require companies to be represented by counsel, but this was not the case in a private arbitration).  Finally, the defendant opted not to attend the arbitration nor meaningfully participating in his defense.

Since the arbitrator — a retired judge — had no defense information to work from, he essentially had to fill in the gaps with the information he did have.  Most of this was done adversely to the defendant.  The plaintiff’s employment agreement provided for a commission which was 5% of gross sales. The agreement also stated that if he was terminated without cause, he would be entitled to the commission on a permanent basis.  So the arbitrator had to guess what the on-going sales of the company would be — in absence of any information from the defendant.  The defendant had sent a letter to shareholders claiming revenue in one month being $535,000 with expected growth rates of 20 or 10 percent a month.  Assuming a 10% per month growth rate in perpetuity, the damages came out to about $1 billion with triple that in punitive damages. Hence a $4billion award.

Arbitration awards can only be appealed on very narrow grounds (essentially fraud).  Thus, the court upheld the award.

The takeaway:  arbitrations are just like trials and equal seriousness should be given to arbitrations as to trials.  Don’t ignore arbitrations.

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While Iranians have taken to the street to protest their disputed presidential election results, an election in Arizona was settled in a different sort of way.  In the run-off ballot for the last city council seat, both candidates tied with 660 votes.  To settle the matter, they each cut a deck of cards after a judge had shuffled it six times.  High card won.

This is alternative dispute resolution at work.

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I am pleased to announced that I have been added to the NJ Superior Court’s roster of mentor mediators.  When a new mediator is accepted to the court’s civil roster (strangely, no such requirement exists for divorce mediators on the court roster), the mediator is required to be mentored in 2 cases and 5 hours of mediation by a mediator on the mentoring roster.  I will now be available to do so.

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Most people do not think about mediation when they think about bankruptcy.  However, the courts do have a mediation program within the bankruptcy court.  I am not sure if the Chrysler filing was sent to mediation given that the filing was somewhat pre-packaged at the behest of the US government.

At this point, 3 of the senior creditors are challenging the judgment of the bankruptcy court.  They are claiming that junior creditors are receiving more than they are, bankruptcy laws were violated and that “TARP” funds meant for finance companies were illegally used to help Chrysler.  Fiat, the company buying what’s left of Chrysler, has set a deadline for the sale to be finalized.  The senior lenders have lost their appeal, but won a stay at the US Supreme Court.  An adverse ruling from the Supreme Court could affect the pending General Motors bankruptcy.  Each party to this transaction has something significant to lose and there are time constraints.

All of the parties to this case should get a mediator to find the win-win or the middle ground.  And quickly.

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Here is a cute video produced by the Department of Veteran’s Affairs which explains mediation using fables.  This example mediation is closer to how a commercial and elder mediation would work moreso than a divorce mediation (where the issues are more defined, the discussion more focussed and caucuses rarely occur).  The video opens in a new window.

Hat tip: Diane Levin

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As I wrote about previously, the bill in the New Jersey Legislature restricting inheritance and matrimonial matters where a serious crime has been committed was signed into law by Governor Corzine last week.  Among the provisions of the new law:

• Prohibits courts from ordering retainer or counsel fees of a convicted attempted murderer or conspirator be paid by the intended victim of that crime.
• No person convicted of murder, manslaughter, criminal homicide, or aggravated assault could receive alimony if the crime results in death or serious bodily injury to a family member of a divorcing party, and the crime was committed after the marriage or civil union.
• A person convicted of an attempt or conspiracy to commit murder could not receive alimony from the person who was the intended victim or be awarded equitable distribution.  The bill defines “family member” as “a spouse, child, parent, sibling, aunt, uncle, niece, nephew, first cousin, grandparent, grandchild, father-in-law, mother-in-law, son-in-law, daughter-in-law, stepparent, stepchild, stepbrother, stepsister, half brother, or half sister, whether the individual is related by blood, marriage, or adoption.”
• A parent of a decedent would lose all right to intestate succession and all right to administer the estate if:
  1. The parent refused to acknowledge the decedent or abandoned the decedent when the decedent was a minor by willfully forsaking the decedent, failing to care for and keep the control and custody of the decedent so that the decedent was exposed to physical or moral risk without proper and sufficient protection, or failing to care for and keep the control and custody of the decedent so that the decedent was in the care, custody and control of the State at the time of death;
  2. The parent was convicted of committing any of the following crimes against the decedent:  (a) sexual assault; (b) criminal sexual contact;(c) endangering welfare of children;
  3. The parent was convicted of an attempt or conspiracy to murder the decedent; or
  4. The parent abused or neglected the decedent and the abuse or neglect contributed to the decedent’s death.

Amazingly, none of these were illegal despite the fact that this conduct should shock the conscience.

Tags: Divorce Mediation and Law // Add Comment »

The longer lifespans of Americans combined with family issues have created (or in some cases exacerbated) existing family disputes and conflict.  Issues and conflicts which have become more common include:

• If/when to “take away” a parent’s driver’s license/car keys
• Inheritance issues with the re-marriage of a parent later in life
• Which sibling takes care of a parent who can no longer live on their own
• When and how to make the decision to place a parent in some type of assisted living arrangement
• When to end a life when the elder’s wishes are not clear (similar to Terri Schiavo’s case)

These disputes have the common threads of loss of freedom for the elder person balanced against the caring for the safety of the elder person by their children.  There is also a theme of sibling rivalry and the playing (or replaying) out of disputes that often began in childhood, but now in an adult context with the parent as trigger.

A mediator as an impartial third party can often help the family sort out these very emotional issues.  I am trained as an elder mediator and will shortly be launching another website dedicated to this area of my mediation practice.

National Public Radio recently featured a story on elder mediation.  If you are having family conflict over later in life issues, please contact me to see how I can help.

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The NJ courts have started a You Tube Channel and their first video is about the court’s foreclosure mediation program.  The video is below and contains all the details about the program, of which I’ve written before.

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The NJ Administrative Office of the Courts court recently clarified the policy on whether the court must provide a spoken language interpreter for events which happen outside of the courthouse.  Court assigned mediation, outside of foreclosure mediation, is typically done at the mediator’s or an attorney’s office.  The clarification to directive 3-04 states that any mediator who requires an interpreter in any court assigned mediation should hold the mediation at the courthouse.  The court will then provide an interpreter at the court’s cost.  This directive does not apply to interpreters for the deaf as that gets into ADA issues.

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