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.

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/

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.

The California Court of Appeal in Kullar v. Foot Locker Retail, Inc. found that the trial court abused its discretion in finding the terms of the class action settlement to be fair, reasonable, and adequate where the record failed to establish what investigation counsel conducted or what information counsel reviewed on which counsel based their assessment of the strength of the class members’ claims.

The Court further found that the record lacked sufficient information for the trial court to intelligently evaluate the amount in controversy and the realistic range of outcomes of the litigation. Furthermore, the fact that the settlement was reached during mediation did not eliminate the trial court’s obligation to evaluate the terms of the settlement. If there were some relevant information that was subject to a privilege that the trial court needed to respect, other data should have been provided that would have enabled the court to make an independent assessment of the adequacy of the settlement terms.

The Court of Appeals held that just because communications made during mediation and writings prepared for use in mediation were inadmissible and not subject to compulsory production did not mean that underlying data, not otherwise privileged, was also immune from production.

With the Presidential election less than a week away, neuroscientists are contemplating why there still exists such a plentitude of undecided voters. Sam Wang, an associate professor of neuroscience at Princeton, and co-author of Welcome to Your Brain: Why You Lose Your Car Keys but Never Forget How to Drive and Other Puzzles of Everyday Life explains, “decision-making is thought to involve two parts, gathering evidence and committing to a choice. In tasks as simple as deciding whether a shifting pattern of dots is moving to the left or to the right, brain activity in the parietal cortex rises as evidence is gathered, eventually reaching a tipping point of choice - though it is not yet known what brain regions drive the final choice.”

There’s an obvious trade-off to this kind of process between speed and accuracy. While a quick decision will let you move on to the next task at hand, a decision made after extensive “evidence gathering” could lead to a wiser and more accurate choice. Wang explains that those who are undecided are not indifferent but rather may simply take more time in their “evidence gathering,” demonstrating a willingness to trade off speed for accuracy.

In Your Brain’s Secret Ballot, an Op-Ed article in the New York Times, Wang writes,

In measurements of decision-related neural activity, after there is enough evidence to reach a person’s decision threshold, his brain can ignore further input even when it might improve accuracy. The brain goes ahead and decides, freeing up mental resources to deal with other problems.

This logic suggests that undecided voters might simply require a higher degree of confidence before they commit. Still, the person may not be aware of that internal commitment. In one study, people were asked to play a gambling game in which they could choose cards from several decks, some of which were secretly stacked against them. After losing repeatedly, most subjects began to nervously avoid the less favorable decks but were unable to say why until after much further play. People with damage to the ventromedial prefrontal cortex lack this intuition, and so they take inordinate time to make decisions in general.

Of course, undecided voters aren’t suffering from brain damage, it’s just that their brains may require an especially long amount of time to develop confidence in or awareness of a choice.

Undecided voters have another five days to finalize their evidence gathering before the clock runs out for them to commit to a candidate. Negotiators however, can continue to utilize the data from Wang’s studies long after the election is over to assess the decision making preferences of their counterpart.

This 1936 photograph of Florence Owens Thompson, a poverty-stricken migrant mother, came to symbolize the Great Depression. By Dorothea Lange/Corbis.

The power of visual information while not easily quatifiable, can be utilized quite effectively at the negotiating table to shape and shift another’s perception of the matter at hand. Glenn W. Richardson, Jr. discusses the power of visual information and the relevant supporting scientific data at length in his article on visual storytelling published in the American Communication Journal.  In his article, Richardson discusses several studies which have linked vivid visual information with heightened memory and recall, finding that visual scenes served to enhance the verbal story line. He goes on to explain that this results from the brain processing visual information holistically rather than deriving meaning exclusively from narrative linkages.

Consider for a moment a person you haven’t seen in a very long time. Now try to describe what that person looks like. You may find this difficult to do. Yet, there is no doubt that when you finally do see this individual again, you will be able to immediately recognize most if not all of the ways that they’ve changed since your last encounter. This is because visual information is often processed in terms of how it fits or deviates from existing patterns. Thus, just because someone cannot articulate or recall the details of a particular visual communication, such as a PowerPoint presentation or photographs embeded in a brief, does not mean that the communication was ineffective or failed in its impact.

On this note, we leave you with a slideshow of the 25 best news photographs as determined by the editors of Vanity Fair - each of which tell a very compelling story.

RealtyTrac, the leading online marketplace for foreclosure properties, reported in its Q2 2008 U.S. Foreclosure Market Report, that foreclosures were filed on 739,714 U.S. properties during the second quarter of 2008, a nearly 14% increase from the previous quarter and a 121% increase from the second quarter of 2007. The report also shows that one in every 171 U.S. households received a foreclosure filing during the second quarter of 2008.

“Although much of the fallout from foreclosures is being driven by rampant activity in a few states, such as Nevada, California, Florida, Ohio, Arizona and Michigan, most areas of the country are seeing at least some increase in foreclosure activity,” said James J. Saccacio, chief executive officer of RealtyTrac. “Forty-eight of 50 states and 95 out of the nation’s 100 largest metro areas experienced year-over-year increases in foreclosure activity in the second quarter.”

In light of all the recent dismal activity in the housing market, states across the nation are responding with mandatory mediation programs to provide some form of relief to struggling homeowners.

In Connecticut, the General Assembly launched a special foreclosure mediation program through the state Judicial Branch, the first of its kind in the United States, to help homeowners who have not been able to make their monthly mortgage payments reports Daniel Tepfer of the Connecticut Post. 

Similarly, Ohio’s Supreme Court has developed and instituted an 11-Step Foreclosure Mediation Program Model that Ohio Courts are using in forming their mandatory foreclosure mediation programs throughout the state. In Seminole County, Florida, 18th Judicial Circuit Chief Judge Clayton D. Simmons signed an order earlier this summer ordering mediation in foreclosures of owner-occupied residences in an effort to force lenders to respond to homeowners’ who want to work out a deal so they can keep their home. “It is forcing, hopefully, some communication that wasn’t going on in the past. That was our whole purpose,” Simmons said as reported in the Orlando Sentinel by Amy Edwards . “If they don’t communicate, there’s no way of working it out.”

We have not seen anything comparable instituted yet in California to specifically tackle the foreclosure crisis. We invite you to weigh in with your thoughts and comments on the issue and how mandatory mediation programs may positively or negatively effect foreclosure actions across the country.