Divorce Mediation on the Rise: Why?

The Denver Post published a recent article on the rise of mediation in divorce.  In it, a couple ending a 30-year marriage discusses their decision-making process.

 In short, they both managed the emotions of the break-up, which were exacerbated by unemployment and having properties that were worth less than the balance on the related mortgages, in order to choose a course that did not involve mutual annihilation.  

As individuals have access to more information about divorce and have greater contact with people who have been through the process, couples are in a much better position to make rational decisions about HOW they divorce rather than letting the very real and emotional aspects of divorce drive them to sabotage themselves (and maybe their spouse, too).  

As detailed in the article, many couples mediate a separation agreement before finalizing a “settlement agreement” on the terms of their divorce that will be filed with a court.  Often these separation agreements are very helpful to making the transition predictable and to give the scenario, particularly when children are involved, a trial run before etching it in stone.

Contact One Mediation for more information about divorce mediation, arbitration and med-arb for Georgia marital matters.

Elder Care: Getting on the Same Page & Establishing a Process

CNN recently published an article on elder care: “As Baby Boomers Retire, A Focus on Caregiving.”   It is interesting to see America age, and often more interesting (and often sad) to see adult siblings (and their spouses) handle caregiving issues.  Too often, the caregiving is done poorly due to a lack of information, a lack of coordination, and plain old denial that a loved one isn’t as able as he or she used to be..

At One Mediation, and other mediation firms, elder care mediation is an offered service.  Many of these mediations are really facilitated family meetings.  Siblings get a sense of where each other stands with regard to “how to care for mom.”  It is a safe place where the family can learn how to discuss and obtain the vocabulary to discuss the financial, medical, emotional, and mental aspects of the road ahead.

Even when siblings seem at an impasse – a battle between keeping mom at Our House  vs. moving mom to assisted living – elder mediation is the place to explore the motivations, the interests, and the reasoning behind these positions.  It is in the best interest of the individual being cared for that his or her children or loved ones meet, discuss, and work out a current plan of action and address how to they will proceed when care needs change.

Aging is an unpredictable pattern.  Talk to anyone with an elderly person in their lives and you may hear about trips to the Emergency Room, set backs, and medical scares.  It is this certainty that the future will be absolutely uncertain that should bring families to the table, with a mediator, to discuss how they want to communicate changes in conditions and how they want to address medical, financial, and caregiving needs.  Caring for an older loved one is physically and mentally challenging, and it can result in permanently damaged relationships, particularly between siblings. 

And, damaged relationships, hurt feelings, and suspicion all can be avoided with communication that is facilitated, if needed.

Tips to Battling Stress at Work

In a recent Wall Street Journal article, Ruth Mantell distilled research on work-related stress to a few tips on how to cope or manage it and to maintain motivation.

Workplace Investigation Sins 6 and 7: Failing to Protect the Process

Jennifer Keaton is a Workplace Investigator with One Mediation.

A recent article detailed 5 “sins” of a workplace investigation.   The article details five requisite skills for interviewing individuals, but it admittedly does not provide an exhaustive account of all the deadly sins.

Adding two more sins to this article, to make a complete “Seven Deadly Sins,” must include (6) not advising employee witnesses of anti-retaliation provisions that exist and (7)  requesting that employee witnesses not discuss the investigation with other employees and to advise the investigator if someone does discuss the investigation with them (while it is pending).

Advising witnesses about retaliation protections provides some assurance that participating in the investigation will not bring some measure of hardship or retribution on them, at least not without the threat of recourse.  This step is often a critical step to establishing rapport and obtaining cooperation from a witness.

Where an investigation requires multiple days’ of interviews and credibility determinations are a concern, an investigator should take steps to assure that witnesses do not influence the information solicited by the investigator.   One means to mitigate such influence is for an investigator to request (or have an employer direct an employee) not to discuss or communicate about the interview or the investigation with other individuals, at least until the investigation is complete, and to inform the investigator of any individuals who do discuss it with them or attempt to discuss it with them.  For some witnesses, the request is a relief as they can “blame” the investigator for their disinterest in discussing the matter with other employees or individuals. This kind of gag order also is effective in promoting accountability because it lets the interviewee know that someone else may “tell on them” if they discuss the interview.

Finally, if the investigator receives any reports of discussions of the investigation or the interview, it may factor into credibility determinations of witnesses and help illuminate certain motivations.   If an accused harasser, for example, spends time telling individuals what they “should say,”  “better say,” or even asks what the interviewee “plans to say,” this conduct could constitute witness intimidation.  It may also suggest that the accused is trying to influence the outcome of the investigation, which may demonstrate retaliatory motives or admissions of misconduct.

All told, a workplace  investigators who fail to protect the investigation process may find that the investigation is compromised or otherwise ineffective.  Good pre-planning with regard to an investigation can assist an investigator with avoiding such fatal flaws.

Workplace Investigation training is critical to an investigator providing a proper and professional investigation.  One Mediation’s Workplace Investigation Training Modules provide a deep dive into the investigative process (Module I) and experiential learning opportunity (Module II) that provide a strong foundation for investigators in these areas.  It is offered two-times per year.

Retaliation Claims: The Interesting Statistics

Janice Harper, an anthropologist, recently published an article that highlights several interesting statistics uncovered by the Ethics Resource Center about Whistleblower claims.

One stat of interest is the fact that 39% of whistleblowers’ initial complaints were not investigated by the employer.  That stat, when taken together with retaliatory conduct towards the whistleblower, suggests that perhaps a reason for the employer’s lack of concern and action was precisely due to the fact that it already knew the complaint was legitimate and true, but an undesirable truth.  Hence, the effort to avoid the reality and to sweep it under the rug.

The proliferation of employment laws over the past twenty years have begun to automatically come with anti-retaliation provisions in them.  Indeed, in the civil rights context, the Equal Employment Opportunity Commission’s statistics demonstrate significant increases in the filing of retaliation charges by employees.  This trend is evident in other contexts, as well.

The rise of retaliation claims has resulted in some employers taking employee complaints more seriously and taking the additional time to review them, even those they believe are entirely contrived.  The reason?   There are many, but some of the more common reasons include the attempt by employers to identify problems early and fix them before matters escalate to litigation and the attempt to create a demonstrable pattern of taking issues seriously (rather than appearing to be the broom-wielding employer that sweeps concerns under the rug).

Due to this trend, employers have begun cross training their in-house counsel, risk managers, and HR professionals to conduct proper investigations of employee concerns and complaints.  Additionally, external workplace investigators have also become more common, the recent creation of the Association of Workplace Investigators is an indicator of this growing industry.

In Georgia, employers typically turn to attorneys as external investigators into workplace complaints.  These attorneys, some of whom have joined One Mediation, are well qualified in being able to quickly respond to an employee’s concerns in an impartial and well-documented and reasoned fashion.   The use of independent workplace investigators with employee concerns and complaints has gained increasing acceptance as a justifiable business expense for a variety of reasons that go well beyond litigation concerns and extend to increased morale, retention of skilled employees, and economic growth potential.

 

 

Workplace Investigations: When? Who? What? But, most of all: How?

Lorene Schaefer, Esq., Workplace Investigator in Atlanta, Georgia

Employees have exerted leverage upon employers to “take note” when they raise concerns about discrimination, harassment, retaliation and more.

Recently, the Association of Workplace Investigators was established – an entity that began as a California-focused entity that quickly became a national organization.   What’s the rush?  Employers are finding that it is not only a good practice to review personnel complaints for morale purposes, but also as a means to potentially reduce liability risks (whether with regard to the complaint at hand or to demonstrate a pattern of taking employee complaints seriously).

Articles abound on when to conduct an internal investigation, who should conduct an internal investigation, what should be investigated, but these articles invariably note that a critical factor of HOW these investigations are conducted is often overlooked.  Many workplaces do not have an employee who has the skills or know-how to conduct a proper investigation.  Due to this fact, many employers looked to lawyers or Private Investigators to conduct them.  Later, HR consultants also marketed investigative services.  Generally, it was happenstance as to who could or should conduct an internal workplace investigation.

With states beginning to regulate this “industry” or workplace investigators and the establishment of professional organizations to help enhance the skills, knowledge, and standards of these services, employers arguably have greater guidance in ensuring that they respond well to employee complaints.  However, employers should also be exploring who within their organizations would benefit from greater training in order to conduct a workplace investigation.  Not only does the Association of Workplace Investigators provide training, but other entities such as SHRM and One Mediation, provide workplace investigation training.

Risk Managers, HR professionals, attorneys and security professionals whose practices address workplace matters should add this training to their resume not only to enhance their credentials, but to ensure that their services reflect the industry standards that are being established.

 

 

Employment Lawsuits: When they are bad, they are really bad.

Employment lawsuits often involve matters such as pay and wrongful terminations.   But some suits are much more compelling than others…even making the Headlines.  Case in point:  Skechers.

Employers sometimes learn the hard way that personalizing a termination can create a slew of bad press and viable legal claims.  What attorney would not want the case where the big-bad-employer appears to pick on the employee even after it’s kicked the employee to the curb?   Those “insult-to-injury” claims are the cases that can really tick off a jury!

With Skechers, the allegations appear to be that it terminated a marketing executive for “allowing” a recently departed employee purchase Skecher shoes with an “employee discount.”   The sin appears to be that the former exec either knew about the post-employment purchase or should have known about it.  As a result, the exec received her pink slip.

One can only imagine what a true audit on the usage of the employee discount would demonstrate…

In any event, the “insult to injury” was that when the exec landed a new job, her reference at Skechers threw her under the bus.  The new job evaporated.

While Skechers may have told the new employer the truth, the whole truth and nothing but the truth, holding its tongue arguably would have been a far more prudent path.  Indeed, many employers have policies that forbid the provision of references or any other information beyond “dates of employment and last job title.”   The reason:  less liability risk.

With the expansion of whistleblower protections, employers must either train its employees on the ramifications of providing opinion-based statements that could be later used as evidence of retaliation by even a former employee.  Some of these anti-retaliation provisions in workplace laws are not only permitting liability to accrue against the employer, but also are permitting individual liability against the “speaker.”

Silence, often, is golden.