EMPLOYMENT MEDIATION

FREQUENTLY ASKED QUESTIONS

SERVICES 

My goal, as an employment mediator, is to help workers, supervisors, and managers find mutually acceptable solutions to conflicts that divide them. This assistance is available in two general contexts:

1. Conflicts involving current employees such as so-called “personality disputes,” accommodating disabilities, and wage & hour claims;

2. Litigated claims involving former employees that parties to the lawsuit have agreed are best settled through mutual agreement. These include alleged: discrimination; harassment; wrongful discharge; retaliation; whistle-blowing; failure to accommodate; wage/hour violations; breaches of contract (express & implied); and employment torts (e.g., negligent and/or intentional infliction of emotional distress, defamation)

PHILOSOPHY

Valuing proficiency, I have trained in all mediation styles including transformative, facilitative, and evaluative. My preferred style is facilitative. It gives disputants a maximum opportunity to create solutions, which meet their interests above and beyond an economic settlement.

Oftentimes, however, parties prefer traditional “American-style” bargaining as typified by negotiations for the purchase/sale of a home. Each side moves from an outermost position toward a mid-range settlement. Their interests (depending on whether they enter mediation as claimants, or respondents) are generally restricted to maximizing gains, or minimizing losses
Whatever the mediation style, I am attuned to everyone’s needs and wants. This requires being: respectful; a good listener; candid; empathic; analytical; and persuasive. These characteristics do not equate to being a well-spoken messenger. Mediators, in my opinion, are retained to be “reagents,” i.e., substances added to a system to bring about a reaction.

Of course, not every mediator is “good fit” for every conflict. For example, a retired judge with an evaluative/directive style might be an apt choice to resolve an intellectual property conflict, but not suited for a matter about accommodating a disabled welder. Mediators of employment disputes require a strong substantive knowledge of the law ranging from causes of action through allowable--and probable--remedies. Moreover, they require an in-depth understanding of the practicalities of the workplace. Settlements of even uncomplicated employment conflicts turn on the perspectives (and relative power) of supervision, line management, human resources, and in-house counsel. In my experience, knowing appropriate questions to ask of such participants is essential; as is a sense of timing.

Finally, my mediation philosophy encompasses a belief that mediators must be the last ones to give-up on finding a resolution. Impasse is a transient, not a permanent, state.

RELEVENT CAREER EXPERIENCE

1967–1978 Held increasing responsible administrative positions with American Arbitration in New York City, Chicago, and New Brunswick (NJ) Regional Offices

1978-1983 Arbitrator/Mediator of labor, employment and civil disputes; 1983-1988 Associate Attorney with Epstein Becker and Green in firm’s New Jersey and New York City Offices

1988--1994 Adjunct Professor Seton Hall School of Law

1988 – 2005 Associate Labor/Employment Attorney with PSE&G

2005 – present full time arbitrator/mediator of workplace disputes.
 

PANELS AND ROSTERS

American Arbitration Association—Employment Mediation Panel (East Coast) --Superstorm Sandy Mediation

District Court, New Jersey - Mediator 

EEOC (Newark & Philadelphia)—Mediator (private sector disputes)

FINRA Mediation Panel—Northeast

New Jersey Public Employment Relations Commission—Mediation Panel

New Jersey Appointee, NY/NJ Port Authority Employee Relations Panel

R. 1:40 Mediator (NJ Superior Court)

U. S. Postal Service REDRESS Mediation Panel

U.S. Veterans Administration Mediator 

FEES

$250 Per Hour-- Hourly rate for preparation, hearing, research, study, and writing Award & Opinion

Cancellation charges: $1,600 if less than 14 calendar days' advance notice

Expense reimbursement for mileage, tolls, parking, train & airfare. Travel to hearings in Florida billed from The Villages, Sumter County. Hourly rate may be charged for travel time in excess of 6-hours round trip.

ARTICLES

“Mediation Advocacy for the Employment Law Practitioner”,  New Jersey Labor and Employment Law Quarterly, Vol. 29, No. 1 (2006)

“Proposed Review Process for Complaints About Rule 1:40 Mediators,”  Mediation News, Vol. II, Issue I (2007)

“Triangles Eat Pink Orchids” (General Semantics & Mediation),  Mediation News, Vol. II, Issue 2 (2007)

“Lawyer Candor During Caucused Mediations”  Mediation News, Vol. I3, Issue 1 (2008)

“Student [Mediator] Peers Can Dilute Toxic Teen Environments,” Patrick Westerkamp and Richard Westerkamp,  New Jersey Law Journal, (January 5, 2009)

“Transformative Mediators Listen Like Critters”  Mediation News, Vol. 13, Issue 2 (2009)

“Preventative Mediation and the Interactive Process,”  New Jersey Law Journal, (March 30, 2009)

“Mediation Advocacy,” Patrick Westerkamp,  New Jersey Law Journal, (Mar. 15, 2010)

“Dilemmas Facing Advocates and Arbitrators Who Mediate Grievances,”  Rutgers Conflict Resolution Law Journal, Vol. 9 - Issue 1 (Fall 2011)

“Employment Mediation and Bullies,”  New Jersey Law Journal, (May 2013)
 

USEFUL LINKS

www.adr.org/: American Arbitration Association. AAA appoints well-qualified neutrals to ADR cases

www.courts.state.md.us/macro/  :MACRO: Maryland Mediation and Conflict Resolution Organization

http://www.cpradr.org  International Institute for Conflict Prevention & Resolution (CPR); non-profit, independent resource helping resolve global business, and complex commercial conflict

www.eeoc.gov/eeoc/mediation/index.cfm : US Equal Opportunity Employment Commission. Info on program to resolve discrimination complaints through mediation.

www.finra.org : Providing arbitration and mediation for securities related disputes.

www.judiciary.state.nj.us/civil/medipol.htm : New Jersey Judiciary website, civil mediation resources.

www.NADN.org  the National Association of Distinguished Neutrals, an association whose membership consists of arbitrators and mediators and distinguished by their hands-on experience in the field of civil and commercial conflict resolution.

www.njmediators.org/roster  NJ’s Chapter of the National Association of Distinguished Neutrals.

www.leranj.ning.com  The New Jersey Chapter of the Labor and Employment Relations Association, an organization comprised of seasoned labor representatives, management officials, attorneys, and neutrals. The Chapter holds monthly meetings on topic of interest to the labor/management community.
 

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FREQUENTLY ASKED QUESTIONS

Q: What is “Mediation?”

A: Mediation is “a consensual process in which disputing parties decide the resolution of the dispute themselves with the help of a mediator, rather than having a ruling imposed on them.” Commentary to the Uniform Mediation Act.

Q: What are the primary characteristics of competent mediators?

A: Mediator characteristics include: 
        Impartiality 
        Subject Matter Expertise 
        Integrity 
        Process Skills 
        Ethical (follow applicable codes) 
        Truthful

Q: What skills/traits do competent mediators share?

A: Practiced mediators most frequently are: 
        Active listeners 
        Quick studies 
        Extremely focused, i.e., “in the moment” 
        Empathetic 
        Plain spoken 
        Courteous and respectful 
        Emotionally intelligent

Q: What should I consider when selecting a mediator?

A: Mediator selection requires participation from all disputants. They may search the web for neutrals such as by visiting the National Academy of Distinguished Neutrals, or Mediate.com. Alternatively, those seeking a mediator could call on an appointing agency such as Institute for Conflict Prevention & Resolution (CPR), or the American Arbitration Association.
In any instance, it is prudent to give preference to mediators with whom you and the other party can build a rapport.

Q: When can I learn about the law governing mediation?

A: New Jersey, unlike many other jurisdictions, has enacted the Uniform Mediation Act, N. J. S. A. 2A: 23C-1 et seq. (“UMA”), which establishes uniform standards for private and court ordered mediations.