This is the ultimate improvisation thanks to Bill Moyers Journal and his recent interview with Mark Johnson, the brilliant producer of the documentary “Playing For Change.” The film took 8 years to create and follows street musicians around the world as they collaborate on various songs, including the Sam Cooke classic “Stand By Me.”

The U.S. Equal Employment Opportunity Commission (EEOC) and Cracker Barrel Old Country Store, Inc. have signed a Universal Agreement to Mediate (UAM) to resolve workplace disputes prior to an EEOC investigation or potential litigation.

One of the EEOC’s key efforts has been to expand mediation, thus far entering into 178 national and regional UAMs with private sector employers, including several Fortune 500 companies.

Additionally, EEOC district offices have entered into approximately 1,275 mediation agreements with employers at the local levels within their respective jurisdictions. Under the EEOC’s National Mediation Program, more than 110,000 charges of employment discrimination have been mediated.

Under the terms of the UAM, all eligible charges of discrimination filed with the EEOC Miami District Office in the State of Florida in which Cracker Barrel Old Country Store is named as an employer/respondent will be referred to the EEOC’s mediation unit, as appropriate.

Established in 1969, Cracker Barrel operates 582 company-owned locations in 41 states.

In Rael v. Davis, 166 Cal. App. 4th 1608, the California Court of Appeal considered the following issue: Is the waiver of confidentiality provision in a settlement agreement enforceable even if the agreement was not signed by all the settling parties? The Court answered the question in the negative and concluded that the trial court correctly held that the term of the agreement waiving confidentiality never took effect because one of the parties to the settlement had not signed it. The Court further held that as a result, the agreement was inadmissible and therefore, unenforceable in whole or in part.

Welcome to our first Improvisational Negotiation podcast. This month’s interview is with actor, professor and trial lawyer, Brian Breiter.

With employers cutting the most jobs in 34 years, 533,000 jobs in November alone, many are seizing this time as an opportunity to pursue a career change. For those who are considering a career in mediation, here are a few websites that will help get you started: 

http://www.nysdra.org/careers/careers.aspx
http://www.nafcm.org/pg29.cfm
http://careers.acrnet.org
http://www.mediate.com/jobs (requires paid membership)
http://www.mediate.com/acrgeorgia/pg11.cfm
http://www.usajobs.opm.gov - search “mediator” or related terms
http://peace.fresno.edu/rjjobs.php
http://www.nafcm.org/pg29.cfm
http://federalgovernmentjobs.us/ - sort by job title, search for related terms
http://www.gmu.edu/departments/nvms/jobs.htm
http://law.pepperdine.edu/straus/careers/

Outliers: The Story of Success is Malcolm Gladwell’s third installment of how people and social phenomena work. In his new book, Gladwell delves into what it takes to achieve high levels of success and how successful individuals at the top of their respective fields get there. As the myth of individual merit and intelligence is unraveled, Gladwell explores the “true” key factors for success … culture, circumstance, timing, birth and luck.

When asked what he hopes readers take away from his new book, Gladwell responded saying:

I think this is the way in which Outliers is a lot like Blink and Tipping Point. They are all attempts to make us think about the world a little differently. The hope with Tipping Point was it would help the reader understand that real change was possible. With Blink, I wanted to get people to take the enormous power of their intuition seriously. My wish with Outliers is that it makes us understand how much of a group project success is. When outliers become outliers it is not just because of their own efforts. It’s because of the contributions of lots of different people and lots of different circumstances— and that means that we, as a society, have more control about who succeeds—and how many of us succeed—than we think. That’s an amazingly hopeful and uplifting idea.

Check out Jeff’s latest article in The Plaintiff’s Magazine entitled, Setting the Stage of Negotiation.

This story  is for you if: 
• You show up to mediation and have never discussed settlement numbers with the defense;
• The defense has not revealed to you their assessment of liability and damages; or
• You are often disappointed at the defendant’s inability to settle in a reasonable range at the first mediation.

November 19, 2008 - The Petition for Review filed by Stephen L. Kaplan, Esq., counsel for Respondent Jameson Thottam,  with the California Supreme Court was denied.

As a result, the appellate court’s ruling still stands that California Evidence Code §1123(c) requires neither that an express agreement in writing permitting disclosure be contained in the settlement agreement itself nor that it even be made at or after the time the settlement agreement is entered into. 

We adressed the history of the Thottam case and the Court of Appeal’s decision underlying the Petition for review on September 15, 2008. For more information, please see:  Recent Confidentiality Decisions … In a Nutshell.

CLASS ACTION SETTLEMENT TOSSED OUT
By Greg Katz
Daily Journal Staff Writer
LOS ANGELES - The other shoe dropped last week when a state appellate panel published an opinion that nixed a mediated class action settlement between Foot Locker and employees.

Facing claims that the company did not reimburse employees for buying their required work uniforms or their time spent undergoing security checks, and denied employees meal and rest breaks, Foot Locker and the class’ counsel reached a deal in mediation with San Francisco neutral Mark S. Rudy.

San Francisco County Superior Court Judge Richard A. Kramer approved the settlement in October 2007.

But three class members challenged the $2 million settlement, which would have left $1.3 million for 16,900 potential class members after administrative costs and $500,000 in attorney fees. The objecting class members claimed that Kramer didn’t see enough evidence to determine whether the settlement was “fair and reasonable” in light of the risks of going to trial, noting that no formal discovery had been conducted on meal rest break claims, which were a later addition to the complaint.

Both class’ counsel and Foot Locker told the trial court that they exchanged information in mediation that supported the settlement, but couldn’t show it to the judge due to confidentiality. Noting the state’s mediation confidentiality statutes, Kramer signed off on the settlement.

But 1st District Court of Appeal Justice Stuart R. Pollak wrote that, notwithstanding confidentiality privileges, the court could not determine the adequacy of the settlement without independently examining the strengths and weaknesses of the case. Kullar v. Foot Locker, 2008 DJDAR 16745 (Cal. App 1st Dist. Nov. 7, 2008).

“The court undoubtedly should give considerable weight to the competency and integrity of counsel and the involvement of a neutral mediator in assuring itself that a settlement agreement represents an arm’s length transaction entered without self-dealing or other potential misconduct,” Pollak wrote.

“While an agreement reached under these circumstances presumably will be fair to all concerned, particularly when few of the affected class members express objections, in the final analysis it is the court that bears the responsibility to ensure that the recovery represents a reasonable compromise, given the magnitude and apparent merit of the claims being released,” he added.

Pollak was joined by Justices William R. McGuiness and Martin J. Jenkins.
The ruling remanded the case to the trial court for the parties to show evidence supporting the settlement and to allow the objecting class members to request further discovery.

“Foot Locker’s payroll records, for example, if relevant to the quantification of the claims being settled, are subject to discovery and may be introduced in opposition to the settlement, even if they were disclosed to class counsel during the mediation,” Pollak wrote.

Class counsel Scott E. Cole of Scott Cole & Associates in Oakland said the next version of the settlement will contain more information. He also said he is seeking depublication of the opinion because it does not create or modify law.

“Notoriety in my cases is something that attorneys generally want, but I’m a little surprised that the court thought this was worthy of going into the books … just because it’s such a fact-intensive situation that we had,” Cole said.
The opinion was issued unpublished on Oct. 14. The court published it Friday “for good cause.”

Daniel H. Qualls of Qualls & Workman in San Francisco, who represented the objecting class members, said the case clarifies what evidence is necessary to determine whether a settlement is fair.

“All I’m saying precisely is [that] a settlement of many, many thousands of class member claims was proposed [in this case], and there was no evidence in the record of the value of the claims being settled,” Qualls said.

Foot Locker’s attorney, Tracy Thompson of Cook Roos Wilbur Thompson, and company representatives could not be reached for comment.

Mediator Mariam Zadeh of First Mediation Corp. in Encino said the case could change the way parties treat class action mediations, which sometimes happen early in the cases before discovery has been conducted on all of the claims.

“What you might end up seeing is parties coming to mediation in class action suits a little bit further down the discovery road,” she said.

If you think it’s difficult to get two opposing sides to see eye to eye, imagine a situation where you’re mediating a seventeen party case with fifty-three participants. Master mediator Michael Landrum, based in Plymouth, Minnesota, did just that. He shares his insight and provides these ten tips for taking the pressure out of complex multi-party mediations: 

1.      Convene a “Process Design Conference” among attorneys (and possibly clients) on a separate day in advance of the actual mediation session.  This approach has the advantages of (a) getting buy-in to the process (and thus a greater commitment to settlement); (b) enabling the mediator to see how each player behaves during only “process negotiations,” which is an indicator of how they will conduct themselves when the rubber meets the road and how to deal with them when the process hits potholes; and (c) functioning as a good forum for identifying “affinity groups” as referenced below.

2.      Establish caucus “schedules” for the first couple of rounds so that attorneys can plan on getting other work done during their “down time” when the mediator is meeting with other parties.  Counsel tend to be quite appreciative of this flexibility and since they were part of the process design, it builds in a sense of responsibility that they will carry out what they agreed to do. 

3.       As the process evolves, revise and post revised schedules. By the second day, the pace of the negotiations generally picks up markedly. Parties and counsel are likely to agree to stick around once the caucuses get shorter so as not to delay the progress being made. The willingness to develop an initial phase that respects counsel’s needs, helps to create their willingness to reciprocate when it is time to accelerate the process.

4.      Identify “affinity groups” of parties with enough overlapping interests to create the potential for productive joint caucuses with all members of the group.  Also, if you’ve correctly sensed the “affinities,” an amazing amount of progress can take place while the group members interact with each other during mediator’s caucuses with other parties – i.e., you come back into the room, and the group that, collectively, was willing to put in $X as their share now presents a contribution of $X+. Once this snowball starts rolling down the hill, the contributions tend to get larger and larger as you make the rounds in succeeding caucuses.

5.      Use flip charts to develop a “Contribution (or responsibility, or both) Matrix,” i.e. what percent of the total pie does each party see for itself and the others.  After making the rounds in individual caucuses (sometimes affinity group caucuses), convene plenary sessions to present the matrix and facilitate dialogue about the results.

6.      Try to arrive at an initial consensus among all defendants as a group on what defendants “think plaintiffs should take” even if it appears to be low-ball – see below).  Again, this process provides all kinds of information about who’s cooperative, who’s not and the reaction of others.

7.      Ask individual defendants in caucus to assume for the moment or pretend, that they could get out by themselves (i.e., disregarding for the moment cross-claims, indemnification issues, etc) and ask them how much of that amount would they be willing to pay?

8.      Reconvene plenary sessions to discuss this “Anonymous Total” and lay out the following scenario:  “So, collectively, you think Plaintiff should take $____, but collectively, at this time, you’re willing to put together only an offer of $<>.  Clearly, something has to change if we’re going to get this done, right?  I now want to talk with each of you (either individually or in the by-now-established “affinity groups.”

9.      “Divide and Conquer” – Work with Plaintiffs to determine what they would be willing to take from each Defendant, and start mini-mediations within the mediation.  Depending on the law of the jurisdiction regarding release of individual defendants, work the specter of potential piecemeal settlements between Plaintiffs and individual Defendants or various affinity groups. If they unable to actually get out on their own, get tentative, hypothetical agreements between Plaintiffs and individual Defendants, that “If Plaintiff can get $X, $Y, $Z, etc. from the major players” they will expect no more than specified amounts from the bit roles.   The recalcitrant ones then begin to perceive what trial would be like if co-Defendants become witnesses for Plaintiffs, i.e., leaving them twisting slowly, slowly in the wind.  This process tends to break logjams.

10.     As an alternative, the mediator can suggest an interim funding agreement to settle with Plaintiffs for $X and then arbitrate the allocation among Defendants.

Michael Landrum has mediated more than 1800 cases in 33 states in disputes involving up to $22 million in controversy. He can be reached at mlandrum@burklandrum.com.