Thursday, June 18, 2009

Older employee with loud clothing makes age discrimination history but his case still goes on

The United States Supreme Court issued another 5-4 decision in an employment discrimination case today, Gross v. FBL Financial Services, Inc. (June 18, 2009). In the majority opinion, Justice Clarence Thomas ruled that a plaintiff in an age discrimination case must prove by direct evidence "that age was the 'but for' cause of the challenged adverse employment action." In the two dissenting opinions, one by Justice Stevens and one by Justice Breyer, the minority of justices opined that earlier Supreme Court precedent required the employee aggrieved by an employment decision to present a preponderance of evidence that age was a factor or played some role in the challenged employment decision, for the burden of proof to shift to the employer to show it would have made the same decision even without considering the employee's age. So a demoted older worker who also wore loud clothes gets his federal case considered (but not finally decided) by the Supreme Court, leaving a fractured decision, more litigation, more time and effort by more lawyers, courts, and citizens -- all of whom will continue to wonder whether Gross really was a victim of age discrimination. Since answers to these questions are so complex in the first place, and so difficult to determine at the end of the day, one can only suggest that a better way to resolve the issues surrounding difficult employment decisions would be in a mature, civilized discussion, also known as . . . mediation.

Thursday, June 11, 2009

Ken Feinberg, not a Czar, but a Mediator

Kenneth R. Feinberg, recently named by the Obama administration as Special Master of Executive Compensation of corporations receiving TARP money, is being called the "Pay Czar." But as the New York Times reports today, "If there is one thing Kenneth R. Feinberg does not like to be called, it is a czar." In the dispute resolution community, Feinberg is known for being a master mediator -- one who helps disputants resolve conflict voluntarily -- by using persistence, patience, and subject matter knowledge to resolve complex problems without litigation. For insights into Feinberg's mediation style, read his book about presiding over the September 11 Victim's Compensation Fund, "What is Life Worth?: The Inside Story of the 9/11 Victims Compensation Fund" (2006)[]. Feinberg uses empathy (apparently a dirty word in some legal circles) and doggedness to help people sort out the complex emotional and economic issues attendant to some of the most difficult personal and business problems they face. Know any Czars famous for that?

Saturday, June 6, 2009

Obama, the Mediator, In the Mid-East

President Obama's remarks in Cairo reflect his consensus-building orientation to resolving deeply divisive world problems. Mediators are trained to reframe conflicting opinions and reorient disputants toward the future and away from the contentious past. Mr. Obama stated: "So whatever we think of the past, we must not be prisoners of it. Our problems must be dealt with through partnership; progress must be shared." The Obama administration also understands the importance of preparing the parties for negotiations in advance of the negotiating table: before finalizing his Cairo remarks he tested the waters with pro-Israeli advocates in the United States and with other constituent groups whose support will be needed to bridge differences; following his remarks and visit abroad, he will dispatch Special Envoy George Mitchell to the Middle East, who is already highly-regarded for his skills as an honest broker. All those interested in alternative dispute resolution should examine President Obama's words, demeanor and conduct for mediation role-modeling.