An Ounce of Prevention…

It strikes me that many workplaces have a lot in common with the healthcare system.  If we’d only spend a little bit more money upfront on training supervisors, or conflict resolution (wellness, preventative medicine) we could spend SO MUCH LESS on litigation (surgery, hospitalization) and dramatically reduce loss of productivity due to unhappiness, conflict and miscommunication (pain and suffering).  But it’s hard to dislodge those dollars you don’t absolutely have to spend.  Even when you understand that winning an employment discrimination or retaliation lawsuit on summary judgment can cost $50,000 to $100,000.

So what can employers do without spending much money that can have dramatic cost-reduction effects?  A few thoughts;

  1. Do a better job of hiring.  Every time there’s a job opening figure out what the person REALLY needs to do and be able to do and hire someone with those qualifications.  Pay attention to why people didn’t succeed in the job or left and don’t repeat the same mistakes. Do background screening.  Effect?  Reduced turnover (try quantifying this if you haven’t).  More productive employees.
  2. Don’t tolerate ignore “jerks”.  Every workplace has those people who are bullies or just take up more time than anyone else. They simply aren’t worth it.  Deal with unacceptable behavior directly when it happens and fire them when their value is outweighed by the trouble they cause.  Effect?  Happier more productive coworkers.  Reduced likelihood of litigation by the jerk or those affected by his/her behavior
  3. Develop a conflict resolution program.  This doesn’t have to be elaborate or expensive but find a way to allow employees to air their grievances before they turn into chronic problems.  The earlier in the life of a dispute it’s addressed, the less there is to deal with.  Effect?  Employees aren’t wasting work time harboring grudges, watching what “she” does next.  Avoid litigation when little problems grow into big ones.  From a lawyer’s perspective, the more opportunity an employee has to complain the less credible he/she is when bringing a hostile environment claim about conduct that “always” happened.
  4. Listen to employees.  The old time suggestion box was a really good idea.  Not only do your workers actually have some really good ideas about how the place could be run more efficiently, they’ll be happier knowing they are valued.  Effect?  Some really good ideas and more productive employees.
  5. Train supervisors on employment laws.  My soapbox for years has been this:  how can we expect people promoted into management positions to comply with laws they don’t even know about.  It’s not just commonsense to understand the obligations under the Americans With Disabilities Act or the Family Medical Leave Act.  Yet the consequences or an illegal – even if well meaning – comment can be enormous.  Effect?  Improved compliance and reduced risk of litigation.

The Right “Man” For the Job

Thanks to George Lenard, an employment lawyer with Harris Dowell Fisher & Harris, L.C. in Chesterfield, Missouri and Owner-Editor of George’s Employment Blawg,, I had the opportunity to co-present at the OnRec/Kennedy Recruiting Conference in Chicago yesterday.  Title was “Employment Discrimination – Tough Questions Recruiters May Not Be Prepared To Answer”.  George and I had a lot of fun, using mock interviews that led to depositions – the source of those tough questions – to illustrate problem areas we’ve seen time and time again when defending discriminatory failure to hire lawsuits.  (Aside:  Thanks to my friends and family for contributing to the role-playing:  Stan Davis, Dylan Brooks, Claire Hardin, Cecil & Margie Edgar, Jeff & Sammie Messick  and Michael Goss!  You’re wonderful!)

I was reminded after spending time at the conference, rubbing shoulders with hundreds of in-house and outside recruiters and hiring managers, listening to program topics and surveying the vast array of software available to help with recruiting and hiring how incredibly difficult it is to make good hiring decisions and how much people are searching for objectivity.  It certainly doesn’t seem that moving out of the analog days of paper resumes painstakingly reviewed by humans into the era of technology would make the decisions any easier. Without a doubt, some tasks are aided by technology, for example, on-line applications that can be sorted and searched and the vastly greater audience that can be reached than the print ad days. However, the vast amount of data available can just be overwhelming especially with the increasing involvement of LinkedIn and other social networking sites.

Analog or tech savvy, best practices for avoiding a discriminatory failure to hire claim ALSO lead to better hiring decisions. It boils down to figuring out:

  • what the job is, what skills/qualifications it takes to do it and which of those you’re willing to train for and which you expect the individual to have coming in;
  • where are the qualified people and how best to reach them;
  • what’s the selection criteria – substance and process – the logistics of sorting through applications and ranking them;
  • who out of a bunch of excellent choices or the best of a not great selection to offer the job to.

We all know this.  So why – time and again – do we start out down this road and then run out and offer the job to the one our gut tells us is the right “man” for the job (probably because it’s the applicant we’d most like to go out for coffee with)?  For more information: “Using Smart Hiring Practices to Reduce Employer Liability”.

You Say Tomato…

I made a presentation last week on “Gender in Mediation: Negotiation & the Gender Divide” (sponsored by Associates in Dispute Resolution – my friends and colleagues Larry Rute, Patrick Nichols . . . and am REALLY glad to have that behind me.  Don’t get me wrong, I am fascinated by this topic and enjoyed every minute of the reading I did to prepare.  It’s just that there’s so much out there and it’s such a complex and nuanced subject that it’s hard to distill into an hour’s worth of useful, organized information.  It’s also a pretty volatile topic – we all have a gender and we all have a point of view.   Cutting to the chase  – and without going into the whole topic of stereotypes and perceptions and why or whether men and women think and communicate differently and who is better at negotiating under what circumstances –  here are some thoughts about how mediators, advocates or parties to a negotiation can help keep gender from getting in the way.

First identify where gender-nuanced dynamics may play a role in communication/negotiation, such as: advocate and party; opposing parties; mediator advocate/party; opposing advocates; multiple representatives of the same party (insurance company, spouses, business partners, company president, human resources professional, etc.).    Then:

  1. Recognize Your Own Biases & Preconceptions.  We all have them.
  2. Better Define the Process.  Studies show that gender tends to have more of an effect in high ambiguity negotiations than where the process is strictly defined and understood.
  3. Identify Gender Triggers. Men tend to negotiate better in a highly competitive negotiation while women tend to do better when negotiating for others.
  4. Take Control of the Shadow Negotiation.  The shadow negotiation is kind of like the metadata of electronically stored information and is that underlying web that encompasses how people treat each other, who gets heard, how cooperative they will be.
  5. But Avoid Appearing To Be Judgmental.  You know what I mean. . .
  6. Don’t Automatically Identify Competence By Gender Or Stereotypical Behavior.  Beware of assuming woman lack subject matter expertise.
  7. Don’t Misread Style Differences. Don’t mistake a more collaborative or cooperative approach to mediation as a signal of weakness in position or resilience OR an effort to manipulate.
  8. Properly Perceive The Impact Of An Apology.  It isn’t always a sign of weakness or admission of liability.
  9. Consider The Effect of Gender On Credibility.  Think strategically about demonstrating competence and trustworthiness to develop credibility.
  10. Understand Gender Styles To Keep Them From Interfering. Bringing subconscious biases, assumptions and behaviors into our conscious mind will help us to be more effective in dispute resolution.


We’re on the way back from a wonderful vacation break in Washington’s San Juan Islands.  Note to self:  come back here soon!   A highlight was two sails on a very cool, 75 year-old, wooden boat  (an Alden) that our captain had restored. When he learned we were lawyers, and then we got to know each other a bit better we heard a story about his encounter with the legal system that left him soured. To make a long story short, he was taken advantage of in a business deal, hired a lawyer and brought a lawsuit.  A jury trial ended in a verdict for the bad guy – who lied on the witness stand.  I know we just heard our captain’s side, but after spending two days with him on the boat, I’m sure he was telling the truth. I know we know only a small piece of a long story, but it’s clear that an interesting, hard working, honest guy’s encounter with our legal system left him bitter.  So a guy who didn’t go to college, who built up a business and then ultimately lost his investment because of a greedy agent gets to pay hundreds of thousands of dollars to cover the bad guy’s legal fees. Should getting a case to trial cost that much?  Might a mediation have helped?

When They Say It’s Not About The Money (It’s About The Money)

We spent a terrific Labor Day weekend in Highlands, North Carolina hosted by our friends along with the amazing Don and Stacey Schlitz from Nashville.  Lots of great music and good times.  Don and Stacey (who is a lawyer as well as a musician) sang us a song they wrote with the chorus above.  From all my years of litigation and mediation, it’s a pretty good rule of thumb.  Truly, it’s never only about the money.  The emotions underlying any dispute are complex.  That’s certainly the case in employment litigation.  Relationships with peers and supervisors at work are important to us and we spend as much awake time with these people as our families.  When those relationships turn on us, it’s really hard.  And it’s not just the employee who was fired – well-meaning managers or human resource professionals have an emotional stake also.  Even if it’s just two businesses fighting, companies are people.  Emotions range from competitiveness to anger to desperation to a desire for revenge.  And sometimes it really isn’t about the money at all – it’s getting closure.  But when they SAY it’s not about the money . . .

Improving the Lawyer/Client Relationship in Employment Litigation

It has been an eye opening experience to work closely with parties transitioning from thinking about fighting to thinking about settling.  The plaintiff turns to her lawyer with a hurt, puzzled look on her face:  “I thought you believed in my case.  You said we were going to tell the jury exactly what happened to me and they would find the employer guilty!  Why are you pressuring me to settle?  Is it because you just want the money?”  Or the Vice President of Human Resources levels a stony glare at outside counsel:  “We didn’t hire you to sell us out, we hired you to defend this case and bring in a defense verdict.”  While every circumstance is unique, I’m seeing enough common misunderstandings to warrant these observations about what lawyers can do better.

  1. Explain the process.  I mean really explain the process.  Even if your client claims to be ultra super sophisticated about litigation – especially if your client claims to be ultra super sophisticated about litigation.  Let them know what can be expected every step of the way in terms of timing, expenditure of resources and individual time investment.  Consider using a written outline that you can go back to, even if this isn’t a client that requests this kind of information.
  2. Define your role.  That is, tell the client what you’ll be doing is working hard to obtain the best possible solution to the problem that led to the litigation.  If you’re any kind of litigator, you should be able to sell this.  Because if you think about it, even for the most hard-nosed, see you in court advocate that really is what you do.   If you get the case by pounding the table with your rhetoric and delivering a rousing closing argument without putting that into context, you lose an opportunity to set realistic expectations for the client.  Because we all know that the vast majority of cases settle.  Sometimes we’re in a position of recommending to the client that they accept an offer that’s hard for them to swallow.  Other times we find they think it’s a sell out to consider settlement at all.
  3. Educate on possible outcomes.  You’ve had clients with unrealistic expectations about what the lawsuit can do for them.  Vindication!  Millions of dollars! Give me my job back and get everybody who was mean to me fired!  Humiliation!  Change corporate culture! Make me feel better!  Just leave us alone! In employment cases it’s mostly just about money and only in the settlement process is it possible to achieve some of these goals.  For example, the company can achieve certainty that this angry plaintiff won’t apply for every job that’s posted, risking a retaliation or failure to hire claim over and over again. A plaintiff can extract a commitment from his former employer to do diversity training, or investigate a brewing problem.
  4. Set and periodically reassess goals.  This process can identify unrealistic expectations and allow those to be sorted out before they turn into a conflict.  It gives a format for discussing evidence that is developing.  For example, “I know we discussed a goal of filing a motion for summary judgment on the retaliation claim, but now that I’ve seen the email discussing ….. that’s no longer realistic – it would just be a waste of your money.”  Or “we did define one of your goals as reinstatement, but the company’s attorney has made it clear that won’t be an option.  We have to look at other options.”
  5. Prepare the client for the multiple hats you’ll wear.  During the course of the litigation you’ll be communicating confidentially with your client; developing a workable relationship with opposing counsel that doesn’t hurt your client; strategizing; evaluating risks; negotiating; presenting your case in the strongest light possible.  In order to be effective, you use different styles for each of these roles.  A client that doesn’t understand what you’re doing and how, for instance, having a cooperative relationship with opposing counsel can benefit him/her with extensions of time, limits on discovery fights, etc may think those friendly communications indicate a sell out.  Delivering the closing argument in a mediation may polarize the parties and your own client would be better served with a focus on how to motivate the other side to settle.  Because they’ll never agree with you that they are the spawn of Satan – but they might agree it would be a good idea to end the fight.

Putting It All Into Perspective

I’ve been involved with Women’s Transitional Care Services – which operates Lawrence, Kansas’ only safe home for victims of domestic violence since January of this year.  Recently I was elected president of the board of directors.  I often feel as if I’m bouncing back and forth between two worlds.  Jobs are important, the types of disputes I’m mediating involve real issues.  But the women and children who come to the shelter because they have nowhere else to go, who are betrayed by a husband, father, who are hurt and scared.  Wow.  I heard Friday that the police dropped a woman and her children at the WTCS offices to be escorted to the safe home with only one suitcase.  Thank goodness there’s a place for them to go. I think about what a strange world the court system can seem like to employers or employees involved in litigation.  But generally they have legal counsel to explain it to them.  Not so for a woman who doesn’t even know where to start to get a protection order and can’t afford a lawyer.  Thank goodness there’s a place where they can get advice and support.  Our organization is in a fiscal crisis.  We can no longer survive with the majority of funding coming from grants.  Please help!

It’s Not Just The Economy

It’s Not Just the Economy! (Links to an article I wrote.)

Here’s a pattern:  employers who are using the economy as an excuse to get rid of poor performers or trouble makers who they just haven’t done a good job managing.  It’s a bad idea, despite the superficial appeal of allowing the employee to save face by being laid off instead of fired.  It’s a bad idea mostly because it’s simply not true.  But what’s a little white lie, you ask?  Unfortunately it can translate to proof of pretext when defending a lawsuit by the employee. Simple illustration:  long time employee, over 40, only female in department, is told she’s being laid off due to the elimination of her position for economic reasons.  Four months later she learns that her administrative assistant has been promoted into her old position.  Angry, she finds a lawyer and files a charge of age and sex discrimination.  When the company tries to defend the termination decision with evidence of poor performance she responds with good performance evaluations and shows that the reason given – position elimination – wasn’t true and that the promotion of the assistant had been planned all along.  Her case goes to the jury which may well infer that when the reason given was false, it was hiding the real motivation to get rid of the older female worker.  And it may be that she really was a poor performer and that termination for performance reasons could have been supported if properly documented and communicated.

Good Old Hindsight

I’ve spoken on the issue of doing a post mortem on a wrongful discharge case a couple of times recently, to Human Resource Managers and to lawyers.  Bottom line – hindsight is a really valuable tool   And we rarely take the time to look back and really critique ourselves.  When we do, there are patterns, common mistakes, opportunities, efficiencies that we can learn from.  It’s not rocket science.  We ought to do it every time.  I have a short article on my website aimed at lawyers.  My colleague on the Management Labor & Employment Roundtable, Jathan Janove (Ater, Wynne LLP – ) did a piece for the February 2004 edition of HR Magazine entitled “It’s Not Over – Even When It’s Over” describing for human resources managers the “invaluable lessons by conducting an employment litigation post-mortem.”

Settling Employment Disputes Makes Sense

Over the years of representing mostly employers but some employees in employment disputes it has occurred to me TIME AND TIME AGAIN that if the case had settled early for what seemed then like an exorbitant amount that the plaintiff demanded a lot fewer total resources would have been expended.  Meaning add up what was paid to plaintiff in settlement after summary judgment was filed (let’s say $60,000), plus defense attorneys fees at a pretty serious hourly rate (conservatively, $50,000), out of pocket costs (travel, deposition transcripts, maybe an electronic discovery consultant (modestly, $15,000) . . .  Dollars alone make the plaintiff’s $75,000 early demand look like a great deal.  Especially when you realize that if $55,000 or $60,000 had been offered it would probably have settled for less.  But it’s not dollars alone.  Hours and hours of management time have been taken up gathering documents, preparing for and testifying at depositions.  The gossip network has been in full force throughout the litigation as the plaintiff keeps in touch with her former co-workers – resulting in lost productivity and some loss of credibility for management.  (“Get this – he admitted in his deposition that . . . !”) 

Don’t get me wrong – I’m not saying that just because a discharged employee makes noises about filing a lawsuit a company needs to throw money at it.   But (as I have often said to employer clients) there’s SOME amount of money that it would be worth to resolve ANY dispute early on – I might ask would you pay $500 if this could be over and behind us?  And that answer is pretty much always yes.  If the case really doesn’t have legal merit then maybe you can figure out a way to get it resolved for a small palatable amount that allows the plaintiff to save face.  And if it’s a case with enough murkiness (or big problems like a terrible document yet to be produced or a critical witness that will turn to Jello) you can’t win summary judgment on (other than state court in Missouri, but that’s a whole other story) then recognize that early on and see if you can reach a settlement that makes sense given all those factors you’ll some day be looking at with 20/20 hindsight.

My friend, mentor and former law partner Susan Hammer (an extraordinary mediator, formerly extraordinary employment lawyer) – – in Portland, Oregon alerted me to an interesting study on settlement decision-making.  She sent me an article she’d written for the Oregon Bar (available on her website) and gave me rights to borrow liberally.  I became engaged and fascinated and ended up writing “Let’s Make a Deal;  Settlement Savvy” which will be published this summer in the DRI In-House Defense Quarterly. I’ve spoken on the subject for the Missouri Bar Employment Section and at a UMKC CLE on the subject of alternative dispute resolution.  A short article on the subject is also on my website.  Bottom line – parties and their lawyers REALLY don’t do a very good job at deciding when to go to trial versus taking the last offer from the other side, it’s costing them a lot of money AND we’re getting worse at making these decisions than 40 years ago, despite enormously greater data to look at.