The Benefits Of Mediating Noncompliance Matters – Sooner Rather Than Later

Stakes over noncompliance are getting higher. Partly because there is more to keep abreast of, and partly because of increased enforcement.

Recent changes in workplace law reflect a robust effort afoot to find, crack down on and deter future noncompliance infractions. There is a spotlight on worker classification, wage payment, minimum wage accuracy (tip offset calculations), overtime, and workplace safety, in addition to medical leaves, parental/maternity leaves, FMLA availability and accounting, hiring practices, and disability qualification and/or accommodation, among other matters.

Upon first realization of a noncompliance issue, it is natural for some degree of the following to take place:

1.) Discovery
2.)  Panic
3.)  Address in person
4.)  Failure to resolve
   4.a.)  Relations sour and exacerbate the conflict
5.)  Litigate? Or … Mediate.

Mediating first may feel out of order, the thinking being “If things didn’t work out with a direct face to face, why should I expect someone to yield absent judicial involvement?” Mediation is, however, worth utilizing early on. It can work because it provides things that are missed in taking a subjective approach:

  • distance,
  • filtering, and
  • organized thinking and problem solving.

Mediation is low risk damage management; while litigation
out of the gate and its exacerbation of tension may, in fact, be overkill. Compliance issues are relatively easy to assess.  It’s the “how to resolve” aspect that mediation takes care of.

Many cases coming to me now correspond to a heightened awareness of such compliance concerns and – not surprisingly – the strain of potential extraordinary damages (e.g., trebling, attorneys fees, and interest). 

The conflicts in these cases reveal varying degrees of misunderstanding and miscommunication about the law and legal responsibilities. Fortunately, these are matters especially suited for mediation. Consider, therefore, the benefit of sooner addressing, clarifying and correcting compliance issues, versus:

  • the time and expense of bloated courtroom dockets,
  • the relatively modest amount of time it takes to assess such matters
  • the persistent, and sometimes worsening, complications of disputes, particularly with a current employer/employee,
  • the inherent expenses in ongoing conflict and the possibility of escalating costs/losses such as personal/business reputation damage, interruption in career or professional advancements, and drains on valuable time, to name a few, and
  • the potential for attrition (lost personnel/professional investments and stability), erosion of workplace morale and commitment (productivity).

Early mediation is a sound, pragmatic, and expedient option.  It can:

  • provide immediate relief, enabling parties to move on with their jobs and business quickly
  • help parties incur as little as possible of the damage that litigation otherwise inflicts  
  • let participants maximally and optimally leverage money available to resolve the dispute and enhance the likelihood of settlement.  

Keep in mind that mediation does not do away with the litigation option and the vindication/damages potentially available. Litigation, however, can complicate, delay and even reduce the chances for a more beneficial resolution – mediated or otherwise.

If you have any matters pending now or developing, talk to a mediator. Choose someone who is adept at resolving workplace conflict; someone with extensive experience in and exposure to a broad variety of personalities, conflicts, workplaces, industries and resolutions. This will pay dividends by saving time, earnings, jobs, workers, HR and management resources, and more.

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What Soft Skills Can Do For You In Negotiation

What can soft skills do for you in negotiation?  Open important things:  ears, minds, dialogues, resolution pathways, and more.

This is because soft skills have the ability to engender trust which, in turn, facilitates cooperation, collaboration and decision-making.  Negotiations with and without trust are simply very different.

Overall, soft skills imbue an interaction in such a way that creates an atmosphere that feels safe to emote, regroup, be challenged and then reason and advance.

Some examples of soft skills are:

  • Listening and acknowledging
  • Reading the room (be cognizant of the collective, as well as the individual, dynamics)
  • Using body language that conveys and fosters openness when talking and listening
  • Comfortably allowing emotive expression
  • Keeping patient
  • Encouraging manageability of the process;  inspiring confidence that the conflict is resolvable
  • Speaking mindfully (words, tone and inflection)
  • Approaching with an interest-based focus (makes one feel understood)
  • Incorporating challenges in tune with a personally important purpose
  • Directing attention to possibilities, and away from what cannot be changed (empowerment rather than powerlessness)

These techniques are not substitutes for hard skills – intellectual, experiential, knowledge-based, etc.  A negotiator or mediator whose style embodies both, however, can significantly enhance the process of deconstructing obstacles to negotiation and resolution, as well as client relations.

Parties’ satisfaction begets appreciation for their representatives’ choices. When parties feel they and their needs were well taken care of – from the point of mediator selection, to session experience, to the note on which the process ends, the experience fosters loyalty, future reliance and referrals.

As a matter of prudence and practice management, reinforce settlement efforts by involving a mediator with a combination of these qualities, rather than taking the risk of coming up short.

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Why Great Negotiators Earn More Money, By Katie Shonk

Why Great Negotiators Earn More Money


“Great negotiators understand that the more issues they add to the negotiation, the more money they are likely to make.”

Having been a student of the Program on Negotiation, this philosophy is well instilled in my mediations – before, during and even after sessions.  This article may lend us additional ways to maximize the benefits of pre-session work;  expand the scope of consideration and enhance outcomes.

Why Great Negotiators Earn More Money

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Why Not Include a Mediation Clause?

Terms, no matter how well constructed, are always subject to interpretation — be it a matter of definition or context.  The potential for conflict over enforcement is, therefore, ever present.

Many employers and employees nowadays know the value of mediation, but most only consider proposing it after a conflict has arisen.  Consider proposing a mediation clause in your engagement forms, such as:

  • offer / acceptance letters,
  • employee handbooks,
  • non-disclosure agreements,
  • non-competition agreements, and/or
  • employment contracts

The following sample language may be helpful and, of course, can be modified to suit:

If a dispute arises out of or relates to this [contract, lease, term, clause…] or the breach thereof, and if the dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by mediation within 30 days of (name event, e.g., providing written notice of dispute) administered under (name rules, e.g., M.G.L. Chapter 233, section 23C) before resorting to arbitration, litigation or some other dispute resolution procedure. The process shall be confidential and based on terms acceptable to the mediator and/or mediation service provider.

Mediation is a process which involves each party to a dispute sitting down with an impartial person, the mediator, to attempt to reach a voluntary resolution. It involves no formal court procedures or rules of evidence. The mediator, also, does not have the power to impose a binding decision or force an agreement on the parties.

Not only does mediation provide efficiency, its inclusion as a dispute resolution option can be preventative; showing good faith and planting the seed of communication — the lack of which has been known to originate most conflicts.

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Stay Proactive

It may feel like once a case is filed that the outcome is out of your hands; that the chance to take proactive, ameliorating action is out of reach. That isn’t necessarily so. Pursue mediation.

Mediating in the early stages poses advantages for parties on both sides, such as:

1. “In-house” manageability of a situation gets further away from the parties as the legal process moves along.  As the matter progresses, sentiments fester and heels dig in.  The investment in or need for a decision-maker’s perspective grows.  Voicing and addressing concerns sooner rather than later may more easily rectify an outstanding conflict, minimize its impact, shorten its life-span, and avoid the filing of a complaint.

2. The sooner a matter is addressed, the greater the chance to turn morale around. People can be prone to believe the worst. Negativity can escalate and erode relations and productivity. Asking to mediate, however, demonstrates problem-solving sensibility and approachability.  It shows interest in addressing, understanding and rectifying concerns (sometimes primarily a breakdown in communication), rather than disinterest toward discord and resolution. This can improve information-flow to those responsible for the health of the workplace and lead to mutual efforts toward a safe, productive work environment.

3. The younger the conflict is, the greater may be the (temporary) availability of some non-monetary options that can enhance the prospect of mediating and settling. Such options and their value can disappear as time goes on. Some examples – with the caveat that each is mentioned for general discussion purposes, only, and subject to legal consideration on a case by case basis – are:

  • Fuller communication that leads to better understanding of the root of the conflict, the reason for lodging/filing a complaint and the defenses raised thereto (i.e., assumptions that each party knew what the other knew), what the interests are, and what kind(s) of resolution may possible;
  •  Expressions of regret shared alongside the reinforcement/enhancement of communication and other corrective measures can minimize immediate and broader fallout;
  • Reinstatement or return to work which can avoid a wide range and degree of losses;
  • Departure with the provision of a job reference (possibly denoting a description of work responsibilities), and agreement on who shall provide such, can serve an immediate need as well as minimize some of the most costly damages of conflict;
  • Clarification of one another’s understandings or negotiation of the parameters of non-compete arrangements which may enhance circumstances for both parties; and
  • Consideration for the greater efficacy of an earlier agreement to a confidentiality provision (though parties must be especially careful of recently enacted legal limitations associated with the availability of such).

Keep in mind, too, the relative value of achieving an early settlement in light of other possibilities.  Unfavorable short-term outcomes involving a Motion to Dismiss or receiving a Lack of Probable Cause finding can significantly weaken any remaining settlement potential.  Similarly, a Probable Cause finding can add tens of thousands of dollars to the cost of litigation and an assessed value of the case.

In short, the aging of a case can increase polarization and diminish the prospects for resolution and/or settlement. Be and stay proactive. Suggest mediation from the beginning and keep it continuously on the table. At the very least, the benefits include setting a conciliatory tone from the outset and planting a seed for discussion down the line if parties don’t immediately agree to convene.

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