After thirty-two plus years practicing law I have had more than my share of clients tell me that their particular dispute was not about the money. Any lawyer practicing for any length of time has had the same experience and usually when a client says it isn’t about the money it typically is ALL about the money or becomes about the money once the client gets the first bill. One of the reasons I love mediating employment/workplace disputes is that many times these disputes are truly not driven by money and allow for creativity with non-monetary terms.
For example, letters of reference or recommendation can often be negotiated as a part of a settlement many times to include langauage that is different than what the employer may typically use. Mutual nondisparagement clauses are another example – I won’t badmouth you and you don’t badmouth me. Amending the employee’s personnel file to change a termination to a resignation is a simple but effective non-monetary term. Changing shifts, work stations or supervisors can also be considered for current employees.
The list could go on and on depending on the particular case. Do not lose sight of the fact that many times employment disputes truly are about more than money so open your mind and be creative.
I blew out my knee twice playing college football  As a consequence I have more than a passing familiarity of the anatomy of the human knee. Does that knowledge of the knee’s anatomy mean that I am competent to perform knee surgery? The answer is obvious and despite my personal familiarity with the anatomy of the knee you do not want me operating on your knee. Similarly, mediator competence needs to be viewed as more than familiarity with the subject matter of the matter to be mediated.
The Model Standards for the Conduct of Mediators (“the Model Standards”) obligates a mediator to accept a mediation only when the mediator has the necessary competence to “…satisfy the reasonable expectations of the parties.” Model Standard IV. Does this just mean familiarity with the subject matter to be mediated? The answer is no.  The Model Standards specifically point to training, experience in mediation, skills, cultural understandings and other qualities as factors in determine mediator competence. Model Standard IV does not even specifically mention subject matter familiarity unless that fits generically under the catch all of “other qualities”. Further emphasizing this point is the portion of the rule which encourages the mediator to attend educational programs to maintain and advance the mediator’s knowledge and skills related to mediation as a means of establishing competence in order to meet the reasonable expectations of the parties.  Model Standard IV A2.
Having substantive knowledge of the subject matter of the mediation can certainly be helpful but far too many people looking to hire a mediator place almost exclusive emphasis on subject matter experience. Such substantive knowledge alone does not mean necessary competence to satisfy the expectations of the parties for purpose of mediation. The most important aspect, however, when looking for a mediator is to find one that is competent in the skills and knowledge of mediation. After all the mediator has a duty to conduct a quality process and that is hard to do if the mediator does not know or understand what a quality process entails.

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.