The previous blog post focused on what the parties can expect from me as a mediator. This installment focuses on what I expect from the parties to a mediation.

As you might expect, first and foremost I expect the parties to be honest with themselves and with me during the process. This applies to any lawyers involved as well. Honesty includes assessing BOTH the strengths and weaknesses of their claim or dispute. It is helpful I believe to sit down in advance and write down both on a sheet of paper and bring that with you to the mediation. Honest assessment of your claim is crucial to success.

Second, and along those same lines I expect the parties to be prepared. Preparation starts with the honest assessment referenced above. It also includes having the documents that you necessarily need to prove your claim or establish a claim of damages. Bring the documentation with you to the mediation and exchange it with the other party well before the mediation is scheduled. Seeing documentation for the first time during mediation is not conducive to the process. Provide that documentation at least a week in advance.

Third, be willing and able to give a good faith effort to come to a full agreement on the issues in dispute. Mediations can be hard work and take a toll on all involved. Understand that, like anything else in life, the more effort you expend the better the result that will likely be achieved.

Fourth, be willing to listen to the other side, communicate with the other side and hear their feelings about the dispute. This can be difficult for some people. When I was defending lawsuits often times the hardest part for me and my clients was sitting while the other side presented their side of the case without being able to immediately chime in and respond. You will get your opportunity to present your side and your feelings so don’t get so caught up in thinking of your response that you forget to actively listen to what the other side is saying.

Finally, I expect the parties to behave in an adult manner, and be respectful of every person in the room. Be patient as well. Mediation is usually a marathon not a sprint.

As always, please contact me if there are any questions or if I can help you with your dispute.

 

I am a third party deemed by the parties to be acceptable to attempt to resolve the dispute in issue. My job is to facilitate a discussion between the parties. As a wise mediator once said, “while I may be neutral I am not passive”. I will point out issues that neither party may have thought of and I view that as a valuable part of my role. That said, I am not an advocate on behalf of one side or the other. I do not represent any party in the dispute and do not provide legal advice to any party.

I have no interest in whether the parties settle or not. I do not judge my abilities as a mediator to be dependent on a success rate. The parties control whether a case settles or not. I can encourage and guide the parties to get to that point but I have no control over the outcome.

I am persistent. I will meet as many times with the parties as necessary for them to come to reach an agreement. Many times that will happen the day of the mediation. Other times it may not. I will continue to work with the parties as long as constructive progress is being made.

I will never force any party in to a settlement. If a party wants to discuss the settlement offer with someone else or think over a settlement proposal, I will allow the party to do so for a reasonable amount of time.

I will not draft the applicable court documents to have your settlement rendered to an order or judgment in a court of law.

I will keep confidential what is said (and done) during mediation. I can never become a witness in any court proceeding should you not reach a final settlement. I destroy all of my notes and mediation submissions once the mediation is concluded.

I will work hard. I will actively listen. I will be honest with the parties and I expect honesty in return. I will be courteous and respectful and I expect the same in return. I try to make the process as enjoyable and as much fun as I can.

As always, contact me if you have any questions or if I can help you.

My name is Michael S. McKnight and I am a partner in Boyce Law Firm LLP. I have practiced with this firm for over thirty-one years. My practice during that time has focused on employment law related issues.

I have been blessed with many professional accomplishments but several standout in my mind. I am an “AV Preeminent” rated lawyer by Martindale Hubbel. I have been recognized by Best Lawyers, Chambers and Great Plains Super Lawyers. Our Firm was selected to be the South Dakota representative of the National Workers’ Compensation Defense Network and I was the first South Dakota lawyer to be inducted in to the College of Workers’ Compensation Lawyers. I have been named Sioux Falls Best employment lawyer multiple years in a row and have been inducted in to the National Academy of Distinguished Neutrals. Perhaps my most cherished accomplishment is forming the South Dakota Chapter of Kids’ Chance, a nonprofit that provides scholarships to young men and women whose lives have been negatively impacted by the work related injury or death of a parent.

In March of 2016 I completed my 30-Hour Civil Mediation Training through Mitchell Hamline Law School and the Mediation Center of Minnesota. In May of 2017 I completed the American Arbitration Association (AAA) training and am on the AAA Panel of Arbitrators for employment matters. I have also participated in numerous webinars dealing with mediation training and lectured to employers and HR groups about the benefits of workplace dispute resolution.

At this stage of my professional and personal life my practice is focused on alternative dispute resolution – mediation and arbitration. While the lawyers involved in ADR are familiar with the process most of their clients are not. I view it to be a large part of my job as a mediator/arbitrator to ensure that the participant’s questions are answered and that they understand and feel comfortable with the process. One of the most rewarding aspects of my mediation practice is interacting with the participants, actively listening to their issues and complaints and helping guide them to a solution to their particular problem. As a wise mediator once wrote, “while I am neutral I am not passive” and I believe it is an important part of my job to point out to the participants issues they may never have thought of or perhaps simply wish to ignore. I truly enjoy and have a passion for the people I meet in mediations and get great satisfaction out of helping those participants resolve their disputes.

I was born and raised in a small town in northeastern Minnesota along the north shore of Lake Superior. After playing college football and graduating from South Dakota State University (and after a short stint working on a master’s degree) I attended the University of South Dakota School of Law, graduating with honors in 1986. My wife and I were married in 1981( Nancy is the best thing that ever happened to me) and have four children and (thus far) one grandchild. In my spare time I am an avid outdoorsman focusing mainly on traditional bowhunting and fly fishing. I am also involved in many conservation related causes and am an active public land supporter. Few people know this about me but I played high school hockey against several members of the 1980 Olympic hockey team that won the gold medal and of “Miracle on Ice” fame.

I love helping people resolve disputes probably because I spent over thirty years helping one side or the other perpetuate disputes. I grew tired mentally and physically of the fighting and find my new role in ADR much more rewarding to me personally. Mediation works so well in my opinion because the participants have control over the outcome of the dispute. I am happy to be able to play a part in that success.

I read an interesting study in the Fall 2017 volume of Conflict Resolution Quarterly entitled “What Difference Does ADR Make: Comparison of ADR and Trial Outcomes in Small Claims Court” by Lorig Charkoudian, Deborah Thompson Eisenberg and Jamie L. Walter. This study was the first to compare litigants that participated in ADR to an equivalent group that used the traditional court process immediately and three to six months later focusing on attitudes and change in attitudes of the participants. The results were interesting.

Positive short and long term outcomes were noted in the group that participated in ADR. In comparison with those that went through the standard court proceeding, the ADR participants were more likely to fully and completely resolve their dispute. The participants in ADR felt as though they had been heard and understood, believed all of the underlying issues had been brought out, witnessed the issues being resolved and bore some responsibility for the situation. The participants learned to appreciate the other side of the story, gaining a new respect for the other party. Even those ADR participants that did not reach an agreement experienced positive attitudinal shifts toward their adversary, a sense of empowerment and having been heard in the process and overall satisfaction with the system. The ADR participants felt better about what had happened than the non-ADR participants.

Might similar sentiments be experienced in a study of ADR in the workplace? In my opinion the answer is undoubtedly yes. People like to have control or at least feel in control of their own destiny. Mediation is a voluntary process wherein the participants control the outcome. After thirty years of handling workplace disputes one fact is crystal clear to me: the participants in a workplace dispute want an opportunity to be heard, to have their day when someone actively listens to their version of events and affords them respect. People want issues to be brought up and resolved on their terms. Imagine the benefit in the workplace that would flow from a positive attitudinal shift between two or more disputing individuals or groups.

As always, let me know if there are any questions

Thirty plus years of handling employment disputes of one form or another has led me to reach several conclusions concerning these disputes and how to best resolve them. While mediation is more of an art than a science and no one thing will guarantee success at a mediation, there are a few things to consider that will increase the chances of a successful mediation of an employment claim.

First, mediation should be attempted after sufficient information has been exchanged for both parties to have an understanding of the strengths and weaknesses of their case, but still early enough for both sides to save costs. Without an exchange of information providing a basis for the claims, defenses to those claims and an idea regarding the damages at issue, the mediation will be less effective as the parties will spend the mediation attempting to understand the other side’s position. That said, it is seldom necessary for depositions and document production prior to mediation. One of the best ways to ensure that both sides understand each other is to simply require the parties to exchange the factual portion of the mediation submission to the mediator as well as the opposing party.

Second, selection of a mediator can be very important in the employment case. This means taking into consideration the personality of the mediator as it relates to the personality of the parties, as well as considering the mediator’s substantive experience in handling employment disputes. The parties should seek a mediator with a personality that will assist settlement – not impede it. Given the sensitive nature of most employment disputes, hiring a mediator that understands the volatile nature is invaluable.

Third, from the employer’s standpoint, consider bringing someone the employee liked or respected while employed with the employer to the mediation. And, for heaven’s sake, do everyone a favor and do not bring the alleged harasser to the mediation.

Fourth, parties often wonder whether having a joint opening session is a good idea. While much has been written in the mediation world about this topic, from my experience, opening sessions are a great opportunity for both sides to provide information they feel is important about the claim so that each has a better understanding of the issues. Do not cover up the bad facts and weaknesses of your case. Instead, disclose them early on and create credibility with the mediator and the other side.

Finally, have some rational explanation for your offers and counter offers. Be flexible and willing to listen and do not react emotionally if possible. Never forget that it is the mediator’s job to help both sides to reach a reasonable resolution and doing so takes time. Be patient and creative. While money is always a motivating factor, many employment disputes end up resolving because of non-monetary terms. As I learned in my EEOC training, many employment cases end up resolving with an apology being as important as any other term.

My role as a “neutral”, to use the official jargon, necessitates that I am balanced in order to resolve conflict in the workplace and elsewhere. Some may joke that I am far from balanced, however, I take pride in my ability to be balanced when it comes to the subject of mediation or other forms of alternative dispute resolution in the workplace. The simple truth is this: Mediation works. It saves an organization time and money, and it is not something that should only happen when a formal complaint or lawsuit has been filed. Indeed, the closer to the origin of the conflict or dispute matters can be addressed, the higher chances there are to save both time and money.

The cost of conflict to an organization is high. Defending an employment-related lawsuit can easily approach $100,000 in legal costs alone. While employment practices coverage is fairly common these days, many cases (an estimated 81% by some sources) result in no payment by the insurance carrier. In other words, it is the EMPLOYERS deductible/retention money that is the first to go towards resolution or defense costs. The time spent by HR and other upper management can be staggering and have significant impact on the company. The average duration of an employment matter has been estimated to be 275 days.

The good news is that the vast majority of organizations recognize the cost-control effectiveness of alternative dispute resolution – a number on the rise since 1997, according to a study by Cornell University and Price Waterhouse. Nearly 90% of organizations responding to the 1997 study reported having used mediation as a means of resolving conflict in the prior three years. In addition to saving time and money, organizations have learned that allowing parties to resolve disputes themselves, with the assistance of a mediator, preserves working relationships, results in more satisfactory settlements, and was all-in-all a more satisfactory process.

Trained HR professionals can and should mediate disputes in the workplace, particularly those involving: personality conflicts, poor communication, strong emotions, misunderstandings, employee leave, benefits and pay are at issue. As always, however, if you are in doubt about you or your organization’s ability to mediate a particular conflict at hand, I urge you to seek the advice of your organization’s employment attorney.

When is it risky for the mediation to be handled by internal HR professionals? Because mediation is a voluntary process between the participants, when one participant refuses to allow HR to mediate, then it is time to see if an outside mediator would be a viable alternative. Another situation would be when HR cannot be balanced, or neutral, due to an obvious conflict of interest, or when HR’s impartiality is called into question on the particular matter at issue. Perhaps most importantly are those situations which have triggered the organization’s legal duty to investigate, or when the complaint/dispute is between the employee and the organization. In those situations, the organization is better off enlisting the services of an outside neutral mediator to work towards an amicable resolution.

Please feel free to contact me for further questions or discussion to learn how mediation can benefit your organization – saving your organization both time and money.

Preparing a workplace dispute resolution policy is not difficult, but it does require some thought by the employer and HR professional.

First and foremost, there needs to be some thought put into the decision regarding whether to even have such a policy. The primary motivating factor for nearly all employers is the time and cost of employment litigation versus handling workplace disputes internally. This internal dispute resolution is either handled by HR or through the use of an outside mediator or arbitrator. The latter has proven time and again to be a better and more efficient system.

Once the decision is made to adopt a workplace dispute resolution policy, the employer must determine what claims made by the employee will be covered by the policy and what claims will not be covered. While the list of claims that will be covered is quite lengthy, there are generally only a few claims that a policy will exclude. For example, claims for workers’ compensation and unemployment benefits must be pursued through a state administrative agency and are not properly governed by an internal dispute resolution policy. Often times ERISA/pension plans have their own internal dispute resolution plans which must be followed.

Further considerations in drafting such policies includes identifying the circumstances under which an outside mediator will be retained. Most sample policies provide that if a matter cannot be resolved satisfactorily by the HR professional, an outside mediator will be hired, at the employer’s expense, to attempt resolution of the claims. Should that effort fail, many policies then provide for binding arbitration by an arbitrator knowledgeable in employment law. The American Arbitration Association has a list of trained employment arbitrators and can assist the employer in developing the rules for arbitration and the administrative handling of the claims. As with mediation, the employer will bear all the expense of any arbitration.

Although adopting a dispute resolution policy proves to be beneficial, identifying those employment situations requiring dispute resolution, either internally or through the use of a mediator, is more of an art than a science. I am always here to provide assistance, so please let me know if there are questions or if you would like to explore this topic further.

Likely the most important skill for a neutral to possess when trying to resolve a workplace dispute, or any dispute for that matter, is the ability to actively listen. While it might be logical to conclude that speaking and listening equally share the communication spotlight, this is not the case. Recent U.S. Department of Labor studies have shown that over half of all communication is accomplished through listening. Listening is more than just waiting for your turn to talk. Active listening has been described as hearing both the words and the music. Stated another way, active listening involves the mediator/neutral “…listening to and feeding back an interviewee’s emotions.” The Mediation Process, Fourth Edition, Christopher W. Moore.

Why is active listening a crucial skill to develop? In my experience there are two main reasons. First, most workplace disputes involve, at least on some level, a belief by one party that they have not had an opportunity to be heard or to tell their version of events. Everyone wants their “day in court” so to speak – it is human nature. Active listening helps achieve that. Secondly, workplace disputes are typically filled with emotions, often times negative emotions. Any time an individual’s livelihood may be at stake, negative emotions are understandable and expected. The sooner the parties to the dispute can feel that their version has been heard and understood, the closer the matter is to being resolved. Similarly, the sooner the negative emotions are released, the sooner focus can be placed on a rational solution to the dispute. Active listening is a skill essential to successful resolution of the workplace dispute. Outside of workplace disputes, active listening can help with interactions with colleagues, friends, and clients. Try focusing on listening to understand, rather than listening to respond – it will make a significant difference in nearly every interaction.

I will explore the seven steps to active listening in my next post. As always, please let me know if there are questions.
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Considered by many scholars to be the most comprehensive source on mediation, Christopher W. Moore in The Mediation Process describes the steps to active listening in the following manner.

First, the mediator must listen to what the party is saying and determine the emotion the party is feeling. Is it frustration? Anger? Fear?

Second, select the word or words that reflect what the interviewee is feeling. Care must be taken not to minimize the feeling or blow it out of proportion. Disempowering the interviewee will also be counterproductive so saying “You are feeling really weak and helpless…” is not a good strategy.

Third, tell the interviewee what you have heard in the words and language selected. If more than one emotion is being expressed give feedback as to all the emotions.

Fourth, wait for the response from the party. Be patient and do not fill the silence with more from your own mouth. The response will either confirm the accuracy of the emotion expressed or provide further clarification of those feelings.

Fifth, if the emotions are confirmed encourage the party to talk more about those feelings.

SIxth, if the mediator has not accurately understood the emotions being expressed obtain further clarification from the interviewee. In essence, start over again at the top of this list.

Finally, it may take several attempts to accurately describe the emotion felt and do not be afraid to spend the time and effort necessary to accurately understand what is going on. Do not, however, force this process on the interviewee. If you encounter resistance, move on.

Like most skills, active listening takes practice. It may very well be the most important skill a mediator can possess for resolving disputes. Let me know if you have any questions.