Looking At Equal Pay: What It’s Based On, Where It’s Found, And the Resolution-Value of Mediation (Confidentiality) For All

To help highlight the breadth of consideration Equal Pay issues ought to receive, by plaintiffs and defendants, I found an article by Allen Smith, J.D. which I believe encapsulates the gravamen of Equal Pay litigation.  Tougher State Laws Increase Scrutiny on Pay Equity“:

  • dissects Federal vs. State claim considerations
  • points out potential damage exposure by a lack of diversity and inclusion, 
  • illuminates what those factors, sometimes subtly, convey in terms of evidence, and personnel attraction and retention, and
  • a variety of employment practice areas that ought to be part of the analysis

Consider some of the insight the author/article shares:

  • “Don’t look at pay equity in isolation…. [A] pay equity study should look at applications, hires, promotions and terminations….”
  • “An employer may have equitable recruiting and hiring, but also have high turnover and not be a good place to work at as a woman, for example.”
  • “The central question that is being litigated more often these days is whether an employer has done a study on whether such [pay disparity] factors truly are job-related and consistent with business necessity.”

Another matter to think about is how to address the inequity.  A challenge to pay parity could be harmful to one financially and professionally.  It may bring scrutiny to someone or a business that exceeds expectations and could lead to unintended consequences

I can help.  By engaging in an organizational mediation (or mediation within the workplace), parties can prudently address their concerns as quickly, confidentially and creatively as possible.  The sooner the better.  Having mediated many hundreds of workplace conflicts in their early stages, I can say that time is not on either party’s side.  Left alone, the issues can:

  • grow,
  • permeate the workforce,
  • affect morale and relationships,
  • give rise to other claims, or
  • at the very least, draw on limited reserves in the course of confronting, analyzing and/or correcting possible liabilities.

Remedies that may only be available early on can also be lost.

If you have any matters pending now, developing, or with potential for dispute, please call or write me. I may be available on short notice.  I am available to consult and mediate, as well as present, in-house, publicly and on professional associations panels. Recommendations to colleagues are also most welcome. I am confident our time will be productive.

I look forward to hearing from you.

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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.”  https://www.pon.harvard.edu/daily/salary-negotiations/great-negotiators-earn-money/

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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