We have a new development in the well-publicized meal period case Brinker Restaurant v. Superior Court (Hohnbaum) … the filing of the Reply Brief on the Merits by the Real Party in Interest Hohnbaum.  Get ready for the amicus free for all, which will no doubt ensue shortly.

Bill Gates at TED 2009

At TED 2009, the Technology Entertainment Design conference, Bill Gates delivered a speech on the scourge of malaria, an important global problem the Bill and Melinda Gates Foundation has been addressing since Gates retired from day-to-day operations at Microsoft.

During Gates’ presentation, he proceeded to release a handful of mosquitoes into the air, joking that there was no reason that only poor people should get malaria. These mosquitoes obviously didn’t carry the disease, though the surprise move drew more than a few nervous laughs from the 1,300 in attendance.

There is little doubt that anyone in the room will forget the point of Gates’ presentation after at least briefly feeling the vulnerability of those living in countries where mosquitos do carry the disease.

Consider making your next presentation even more memorable by finding ways to get the attention of the audience and communicating the point of the presentation at a visceral level.  The audience is bound to leave with a lasting impression and your message is more likely to have a viral effect.

In the recent edition of the Journal of Dispute Resolution, Magistrate Judge Wayne Brazil writes about how “spiritual fatigue” can affect seasoned mediators. His thesis is that staying centered emotionally and behaviorally in core purposes and principles of mediation can lower the level of psychic strain that this work can impose on mediators and can serve as a significant source of renewable professional energy.

He identifies the following areas to consider:

1. Denial - one source of fatigue is the fear of admitting that it exists, since we are in a position of being a “force” for good;

2.  Repetition of Process - Our energy might no longer be stimulated by the challenges of mastering new mediator skills as the novelty has worn off and boredom sets in;

3. The Psychic Strain of Being at the Center of the Vortex - the relentless and intense psychic demands that remaining at the center o the mediation process can impose on us. He suggests that we stop seeing ourselves at the center;

4.  Infection by the Parties’ Fatigue - our fatigue might by a product of the fatigue felt by the parties, particularly repeat players to the process;

5.  Exaggerated Expectations of the Parties to the Process - we may be artificially sapping our own energy by expecting too much of the parties and lawyers, as well as the process;

6.  Exaggerated Expectations of Ourselves - we sometimes exaggerate our ability, our contribution, and our responsibility;

7. Sources of Sustaining Energy - Being transparent about ourselves and the process, actively soliciting the participation of the parties and lawyers in decisions about how to structure their cases, and what steps to take at important junctures in the proceedings;

8. Accessing the Energy that is in the Values and Purposes that Animate our Commitment to this Work - we need to reconnect with three animating truths about our work: (1) the process we use and the spirit of the work is important; (2) the vast majority of the people we serve respect and are grateful for what we do and believe they have benefitted from the process we have hosted; (3) our work does in fact teach listening, acknowledging and engaging communication and fostering connections.

A law firm fired by the founders of the website ConnectU apparently got carried away in a recent marketing brochure.

Quinn Emanuel Urquhart Oliver & Hedges touted a settlement in the infringement case, and even revealed the confidential amount won by ConnectU: $65 million, the Recorder reports. The figure was published in a January business litigation newsletter, the story says. “WON $65 million settlement against Facebook,” is the exact wording.

The founders of ConnectU had claimed in their suit that Facebook chief executive Mark Zuckerberg stole their idea for a social networking site. The $65 million is apparently an estimated value of the settlement paid in cash and Facebook shares, the story says.

The disclosure appears to be a mistake, according to the Recorder. Quinn Emanuel chairman John Quinn said the settlement amount was confidential and asked the publication not to print it.

The case originally settled last February, but ConnectU later said the settlement was too low and claimed it had new evidence against Zuckerberg, according to the Recorder account. ConnectU fired Quinn Emanuel and obtained a new settlement that was placed under seal. Quinn Emanuel and ConnectU are arbitrating the issue of attorney fees.

In the matter of Crawford v. Metro, Petitioner Crawford disclosed to her employer (Respondent) that she had been the victim of sexual harassment by another employee.  Respondent had been conducting an internal investigation due to rumors of sexual misconduct by this employee, and conducted an interview of  Petitioner wherein she disclosed the harassment.  Petitioner did not fire the employee alleged to be harassing, but rather fired Petitioner and two other employees who also reported misconduct during the investigation.

Petitioner filed suit claiming retaliation by her employer, but the District Court granted summary judgment to Respondent.  Because  Petitioner had not initiated the complaint but rather just answered questions during an internal investigation, she had not “opposed” the discrimination as required by the statute.  Also, participation in an investigation of an employer is protected under Sixth Circuit precedent.  The Sixth  Circuit affirmed, and the Supreme Court now reverses. 

The United States Supreme Court in Crawford held that the term “opposed” is broad enough to include a report of discrimination  resulting from an employer-initiated investigation.  Opposition is not limited  to an employee-initiated complaint, but can be done through answering  questions as well.  Justice Souter, who wrote the opinion, supports the Court’s decision with reference to the plain meaning of the term “opposed”,  other Circuit precedent, the purpose of the Act, and the need for setting judicious precedent for employees who speak up about discrimination.

brinker-opening-brief 

This is the technique suggested by John DeGroote of Settlement Perspectives which is used as a quick, confidential method to determine proximity of settlement positions. While the technique is situational and can vary with each case, generally speaking each party submits its best offer in confidence to the neutral third party (”the confidential listener”), who informs the parties whether their proposals are within a negotiable range. Generally, and absent specific authorization from the proposer, the confidential listener does not relay one side’s confidential proposal to the other.

The parties will normally agree in advance that if the sums overlap, with the plaintiff citing the lower figure, they will settle at a level that splits the difference. If the cited figures are within a specified range of each other, e.g. ten percent, the parties may direct the neutral to so inform them and help them narrow the gap. If the figures are not within the set range, the parties may repeat the process, or the confidential listener can make a mediator’s proposal.

Here is a form agreement offered by the CPR International Institute for Conflict Prevention and Resolution:

AGREEMENT made    , 2009

between XXX  of  XXX

represented by  XXX   and of

epresented by XXX.

A dispute has arisen between the parties. The parties have agreed to attempt to resolve their dispute through the private process described in this agreement.

Accordingly, the parties agree as follows:

1.    THE NEUTRAL LISTENING PROCESS

      1.1.  Selection. The Neutral Listener shall be _______________ who has agreed to serve and whose compensation has been agreed upon by the parties and the Neutral Listener.

      1.2.  Submission of Settlement Proposals.

      1.3.  Role of the Neutral Listener. The Neutral Listener will promptly review the settlement proposals submitted by each party and thereupon will inform the parties whether their settlement offers are:

       substantially similar or overlap, or

       within a range which the Neutral Listener considers negotiable.

2.    CONFIDENTIALITY

      2.1.  Confidentiality of Settlement Proposals. Unless the parties otherwise agree, the Neutral Listener shall not disclose the settlement positions revealed by the parties, nor will the Neutral Listener reveal the basis for his/her determination that settlement negotiations should or should not commence.

      2.2.  Confidentiality of Settlement Process. The Neutral Listening process is a compromise negotiation for purposes of the Federal Rules of Evidence and state rules of evidence. The substance of this process shall be kept confidential by all parties and the Neutral Listener. The Neutral Listener shall be disqualified as a witness, consultant or expert in any pending or future action relating to the subject matter of the settlement effort, including those between persons not parties to the settlement effort.

IN WITNESS WHEREOF, the parties by their attorneys have executed this agreement as of the date first above written.

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.”

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.