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.

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.

There can be little doubt as to the popularity and effectiveness of alternative dispute resolution (ADR) when dealing with workers’ compensation claims. The uncertainty, expense, and time involved necessitates that most claims get resolved through mediation outside of an administrative hearing and likely appeal through the court system.

Through my years of practice, I have discovered that one seldom used form of ADR is mediation followed by arbitration of issues on which the parties are deadlocked. Med-Arb, as it is referred to in the ADR world, can be a very effective tool for many claims.

Because the Department of Labor (DOL) must approve all workers’ compensation resolutions, the parties must first agree that the decision of the arbitrator will be binding, and the decision will be submitted to the DOL for adoption and approval. Such an agreement is then presented to the DOL, followed by an order entered by the DOL agreeing to adopt, as its own, the arbitrator’s decision, findings and conclusion. The parties then proceed to attempt mediation of the case. If a settlement is reached on all issues, a settlement agreement is prepared, signed and submitted for DOL approval. If the parties are deadlocked on some, or all issues, the mediation is then converted to an arbitration and submitted to the arbitrator for decision and later adoption by the DOL.

While theoretically any claim could utilize Med-Arb as an ADR tool, the claims that stand to benefit the most are those where medical causation is in dispute on some portion of the claim, and entitlement to future medical expenses is an issue. In those situations, my experience has proven that often the underlying claim is more easily resolved if the medical dispute can be resolved as well.

Med-Arb deserves your consideration on many claims. If there are questions, please do not hesitate to let me know.

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.

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.

In recent weeks, zero dollar allocation Medicare Set Aside’s (MSA) came into question. Initially it was thought that on any claim, even fully denied claims, where approval of a zero dollar MSA was sought, documentation would have to be provided to the Centers for Medicare and Medicaid Services (CMS) to support the zero dollar MSA. This would include submitting (1) Final settlement documents or a statement that none exist; (2) All court rulings including but not limited to rulings on compensability; or, (3) If no court ruling exists on compensability, treatment records showing no further treatment is needed for the work injury or a statement from the doctor concerning future treatment. However, additional information surfaced that indicates these stricter guidelines would not apply to settlements of completely denied or disputed claims.

As for zero dollar allocation MSA’s on accepted claims, it is our understanding at Boyce Law that the above-guidelines will likely be put in place. In these cases, in order to secure CMS approval, it will be necessary to obtain a court order that establishes the claim is not compensable, or treatment records showing no further treatment for the work injury will be required.

With that being said, we will watch to see if CMS issues any new guidelines via a policy memo in the future, and keep you apprised of those developments.

While mediation is more of an art than a science, there are a few things to consider that may 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 get an idea regarding the strengths and weaknesses of their case, but 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 day attempting to understand the other side’s position. That said, it is seldom necessary for lengthy and expensive 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 harasser to the mediation.

Fourth, parties often wonder whether having joint opening sessions is a good idea. While much has been written in the mediation world about this topic, from my experience, they 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.

Mediation has proven to be a very successful way for parties to resolve employment and workers’ compensation disputes for a variety of reasons, not the least of which is getting the parties together at a designated place and time to work towards a resolution. Mediation is a relatively inexpensive way to get the unbiased opinion of another lawyer with experience litigating claims with similar issues, and for them to call on their experience to give opinions regarding the strengths and weaknesses of each side of the case. After taking part in hundreds of mediations, I have learned some practice tips that I feel will increase the likelihood of success in employment and workers’ compensation disputes:
(1) Some cases are not ripe for mediation too early in the process. Fact-specific cases and those that present dispositive legal issues are some cases that are difficult to mediate early. In the fact-specific case, if depositions and other discovery have not been conducted, the parties tend to spend significant time arguing and speculating about the testimony of the witnesses as it relates to the strengths and weaknesses of the case. This posturing takes away from the mediation process and distracts from the end goal of reaching an amicable resolution. Similarly, cases with dispositive legal issues are difficult to mediate as the lawyers tend to get entrenched in their own legal arguments and are often unable to have an open mind regarding the other lawyer’s arguments. Early mediation works best in those cases where the facts are essentially undisputed and the focus is simply on the amount of money it will take to resolve the issues;
(2) The mediation submission is important. In addition to informing the mediator what the case is about and the issues at hand, it allows each side to be open with the mediator and acknowledge the weaknesses of their case. The mediation submissions are confidential, so there is no harm in disclosing to the mediator the potentially negative aspects of your case. Additionally, in many cases, there are extraneous issues involved (i.e. financial difficulties of a party), and while they may have no real legal significance as it relates to the strengths or weaknesses of the case, they are nonetheless important to one side or the other when considering settlement. It is helpful to the mediator to be made aware of these issues in advance of the mediation, and to let the mediator know of any issues relating to client control or a client with unreasonable expectations. If addressing these issues in writing is not something with which you are comfortable, they can be discussed verbally with the mediator prior to the mediation and need not be in the mediation statement. There is nothing wrong with visiting with the mediator in advance;
(3) Client and lawyer expectations are, hands down, the biggest impediment to a successful mediation. A client (or lawyer) with unrealistic expectations will make for unnecessary tension and a difficult day for all parties involved. Expectations coming into mediation are seldom met going out. Both the client and the lawyer need to be aware of this fact;
(4) Becoming entrenched in positional negotiation is generally not helpful. While a mediator will address the respective positions of both sides, it is not the role of the mediator to wave a magic wand and make one side or the other give up;
(5) Finally, to the extent that an individual with authority can be convinced to personally attend the mediation, the more likely it is that the case will get resolved. While that is not always easy to do with out-of-state clients and insurance companies, time and time again it has proven to be very beneficial. Far too often, the mediation comes to a stand-still as one party is spending significant time trying to reach the representative who is supposedly “available by phone.” To the extent that this can be avoided, understand that doing so will increase the likelihood of getting your case resolved. As many of you know, there are many things that occur during mediation that are difficult to explain to someone over the telephone.

While this list is certainly not exhaustive, it identifies some of the main issues I come across while mediating. Although the issues involved in a case may be hotly disputed, going to the mediation with an open mind in an effort to resolve the issues will go a long way and serve your client well.

Anyone who has ever been employed has experienced workplace conflict. The conflict referred to need not be related to job performance but can include personal behaviors or idiosyncrasies. Ranging from the petty to the most severe, conflict exists in every workplace setting. Some conflict within an organization is healthy – legitimate differing views on how things should be done can provide a more efficient organization. When the conflict becomes personal and emotional, however, any benefit obtained is lost, and the organization’s unity and productivity can suffer. Worse yet, legal action may follow, resulting in an expensive resolution. Early recognition of unhealthy conflict is not any more complicated than keeping a finger on the pulse of what is going on in the organization, communicating with the supervisors and employees, and using a little common sense. Understanding the best manner in which to address unhealthy conflict is vital, which is the intent and focus of this article.

Most disputes can best be handled internally within the organization, many of which need not involve those in the HR level. Common sense and a willingness to objectively listen is often all that is required of a supervisor to informally resolve many workplace issues and keep the proverbial molehill from becoming a mountain. Unless otherwise required by your own internal policy, disputes rise to the HR level anytime employees are threatening to quit, a supervisor is the subject of, or party to, the dispute, or when the dispute is of such a serious nature that morale and functionality of the organization is affected. Resolution by HR can sometimes be achieved by simply gathering information from the parties involved in a calm and objective manner, and crafting a resolution based on each party’s interests and concerns.

Certain workplace disputes, however, require assistance from a trained mediator. Those disputes would include claims of harassment, discrimination, abusive situations, if HR is not otherwise trained to handle the situation or generically those situations HR does not feel comfortable handling. For those not familiar, mediation is a voluntary process that promotes communication between the parties in order to encourage settlement of the dispute in a manner of the parties choosing. For disputes falling in to this category a trained mediator:

  • can assist in the fact gathering process;
  • is trained to identify and frame the issues for resolution; and
  • can assist the parties in brainstorming possible options for amicable resolution of the dispute.While not always successful, mediation has proven to be a cost effective way to resolve disputes short of the legal process. There are many reasons for the success, not the least of which is the parties have an opportunity to have their version heard by a neutral third party. Furthermore, the parties, rather than a judge or jury, control the outcome of the dispute. Getting someone outside the organization involved is often a good thing if for no other reason than an objective and neutral party can see the dispute from a different perspective.