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Issue

In an age discrimination suit resulting from an employment termination, how did the terminated employee and her employer come to a resolution regarding the defenses and charges between them?

What Happened?

The plaintiff, a 56-year-old female, had worked for a reputable restaurant for more than 15 years.  The restaurant maintained a very friendly environment among customers and staff, and had a total workforce of 50 employees whose average age (excluding the plaintiff) was 28 to 30.  The restaurant terminated the plaintiff’s employment, claiming that during the previous year the plaintiff had complained to customers about her arthritic knee and her son’s wife, and further alleging that she was argumentative with management when they approached her with criticisms and directions with which she did not agree.  The plaintiff claimed to have been fired because of her age; she believed she was a valuable, contributing member of the organization with stellar attendance (she was routinely asked to take the late shift because other younger employees “liked to party”), and although she had cash receipt errors, she had fewer errors than her co-workers.

Special Considerations

• Employee morale was an issue for the restaurant; all of the other employees were devastated when they learned that the plaintiff was terminated; she had trained ¾ of them, and they referred to her as “Mom,” and “Old School” at work.
• Neither party was interested in a long, drawn out court battle, yet remained adamant in their respective positions.

How did PREMi help?

After contacting PREMi to assist them in selecting an experience resolution expert, both the terminated employee and a restaurant representative met with the mediator who then:

• Provided them with the opportunity to state their respective positions and the reasons supporting their viewpoints
• Asked neutral and open-ended questions to help flush out their perspectives and to identify the issues that needed to be resolved
• Identified the relevant issues and skillfully managed the dialogue between the parties to achieve a resolution
• Led the parties in a brainstorming session of potential options and discussing the potential for each alternative

What was the Outcome?

After a four-hour conference, the PREMi mediator helped the parties to achieve a resolution that each side could accept. A final written agreement was drafted and signed, and no court filings were necessary.

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Disclaimer: This summary is illustrative of the types of cases and the manner in which the PREMI associate dealt with the matter. Care has been taken to avoid disclosure of sensitive or confidential information.

Issue:

How did a foreign manufacturer and its American subsidiary efficiently resolve a dispute as to the terms of their separation and avoid proceeding to a time-consuming and costly arbitration hearing?

What Happened?

A foreign manufacturer of custom molds and presses retained an individual to form an American subsidiary.  While the subsidiary was successful in establishing a local presence and developing business in the domestic automotive market, its relationship with the manufacturer subsequently soured following a change of ownership in the parent company and changes in personal relationships.

Special Considerations:

• Both parties genuinely wanted input into how the severance of their business relationship could be structured.
• The dispute between the parties became a distraction, resulting in the disruption of services to customers and threatening to jeopardize that ongoing business.
• Because the parties had already spent a considerable amount on legal expenses between them, including fees for three international arbitrators and a protracted discovery process, they were now eager to “stop the bleeding.”

How Did PREMi Help?

After contacting PREMi in the hope of achieving a speedy resolution, the parties were given a portfolio of qualified mediators from which to choose, and mutually agreed on their selection.  The PREMi mediator:

• Familiarized the parties with mediation, making them comfortable with the process and explaining what was required of each party to make it work
• Held joint and separate meetings with the parties and devoted the time necessary to explore the strengths and weaknesses of their respective fact- specific claims
• Encouraged meaningful discussion between the parties by focusing on the mutual advantages of resolving their dispute

What Was the Outcome?

As a result of a truly collaborative environment fostered by the PREMi mediator, the parties left the mediation conference with:

• Mutual agreement regarding a final resolution of the dispute
• A written and signed preliminary agreement summarizing the key terms of the settlement, which they finalized in writing within two weeks
• The promise of an orderly and cooperative transition of business, equipment and employees that would preserve customer relations

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Disclaimer: This summary is illustrative of the types of cases and the manner in which the PREMI associate dealt with the matter. Care has been taken to avoid disclosure of sensitive or confidential information.

Issue

How do a manufacturer and contractor resolve substantial claims, counterclaims, and ill will originating from the non-completion of a critical engineering project?

What Happened?

A multinational manufacturer hired a specialty engineering and construction contractor to design and install a critical backup power generation system for a new plant located in a foreign county known for unreliable utility service.  The agreement between the parties contained a critical time schedule and provisions for lump sum, fixed fee, and time and material billing.The time schedule was quickly adjusted several times for various reasons, arguably attributable to both parties – the scope of the project changed, personalities clashed, etc. – and threats to stop work and stop payment were made.  At a point when the project was largely complete, the contractor either walked away or was thrown out, depending on which side you asked at the time.

Subsequently, the contractor filed a claim for unpaid work in federal district court,and the manufacturer filed a substantial counterclaim seekingconsequential damages.  After numerous depositions and near the close of discovery, the parties agreed to mediate the dispute before their final settlement conference with the judge.

Special Considerations

Complicating matters were the following developments:

• By the time of mediation, neither the contractor’s project team nor the manufacturer’s site manager was employed by their respective companies
• Although experienced, the contractor’s counsel had only engaged in “shuttle diplomacy” in previous settlement hearings, and attorneys for both parties had different views regarding the amount of information they wanted to present at themediation hearing
• The manufacturer began operating the new plant without completion of the permanent backup system, and instead brought in temporary equipment that would most likely have been inadequate in the event of power interruption
• The manufacturer planned to remove the contractor’s work and bring in a new vendor due to the fact that the system was controlled by the contractor’s proprietary software
• Although the contractor’s principal and chief engineer was an international expert in the proprietary software that controlled the operation of the backup equipment, he was involved in numerous other projects in which the company was involved.

How Did PREMi Help?

After a local construction specialist recommended that the manufacturer work with PREMi to find a solution, the parties agreed upon a qualified PREMi mediator to oversee the proceedings.

• An Agreement to Mediate, including confidentiality provisions, was reviewed and executed by all parties prior to the hearing date.
• The mediator established a two-stage fee schedule for the mediation engagement consisting of a fixed-fee component for all pre-hearing preparation and review along with an hourly fee for time spent presiding over the hearing
• Counsel for both sides agreed to start with a joint session, but with a nod from the mediator, reserved the option to resort to a caucus-only format if they thought it best for their clients
• The mediator focused the manufacturer’s attention on the fact that it was operating a plant without adequate utility backup, creating significant risk with enormous consequences, and that the installation of a new backup system would scrap almost all of the work completed under the disputed contract
• Similarly, the mediator made clear to the contractor that if the matter could not be resolved in a way that salvaged the existing equipment, the manufacturer would more aggressively pursue its counterclaim for money damages
• During the hearing, the contractor acknowledged problems with the project, but expressed its justification in demanding payment in full and its unwillingness to enter a hostile owner-contractor environment to complete the project

What Was the Outcome?

With guidance and direction from the mediator, the parties achieved an extremely favorable result that was beneficial to both sides:

• For a modest amount of money, the parties agreed to not only salvage the existing equipment, but also get it online in a short amount of time, something the manufacturer had not previously considered
• The opportunity to immediately mitigate the risk of lost production was a significant incentive to the manufacturer
• To reach a settlement and restore the business relationship, the contractor’s principal agreed to personally locate his “A Team” onsite with the manufacturer until the equipment passed commissioning and final customer acceptance

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Disclaimer: This summary is illustrative of the types of cases and the manner in which the PREMI associate dealt with the matter. Care has been taken to avoid disclosure of sensitive or confidential information.

Issue

In a dispute over a non-compete agreement between a small insurance agency and one of its sales representatives, how did the two parties – as well as a second agency that hired the sales representative – use mediation as a means to resolve their differences and move forward?

What Happened?

When the sales representative separated from the insurance agency to begin working for the second agency, the first agency became concerned that the representative would leverage its relationships to the benefit of the second agency by contacting contact the client base he had acquired during his prior employment.  Seeking protection, the first agency sought a preliminary injunction to prevent the representative from competing for its clients.  After the court denied the request, and recognizing that the cost of litigation was potentially more than the amount of money in dispute, all parties agreed to facilitative mediation before conducting extensive discovery.

Special Considerations:

• Prior to mediation, the attorneys for the two insurance agencies were unable to agree on the ground rules for how the companies would compete for clients or if any of those accounts would be protected.
• Both agencies sought to establish with certainty what they could and could not do in the future without risking further contractual disputes.
• Neither insurance agency was in a financial position to pay for protracted litigation, which held uncertain outcomes, and they each wanted to concentrate on growing their businesses and not spending time preparing for and attending depositions or hearings.

How Did PREMi Help?

The attorneys contacted PREMi and selected a mediator with extensive experience in employment issues and a reputation for impartiality and fairness.  The PREMi mediator:

• Submitted a mediation agreement, including a confidential provision, for the parties’ review and signature prior to beginning the proceedings
• Met with the parties in a joint session where each side made opening remarks; given the sensitivity of the issues involved, the mediator then divided the parties into different rooms to continue the mediation process
• Generated momentum by identifying issues that could be easily resolved and then assisting the parties to find common ground on the more complex issues

What Was the Outcome?

After a morning of frank discussion led by the PREMi mediator, the parties left the session with:

• A binding agreement that not only resolved the lawsuit, but also established procedures for how the two agencies could compete for certain accounts in the future
• The opportunity to craft their own resolution and conduct their business without further conflict
• Peace of mind that the matter had been resolved without spending tens of thousands of dollars in legal fees

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Disclaimer: This summary is illustrative of the types of cases and the manner in which the PREMI associate dealt with the matter. Care has been taken to avoid disclosure of sensitive or confidential information.

Issue

How did mediation assist in resolving a lawsuit brought by a large enterprise against a former employee who took a small group of clients with him upon departure in alleged violation of a written non-solicitation agreement?

What Happened?

The employee defendant terminated his employment voluntarily.  Upon his departure, the plaintiff employer charged that the employee contacted a number of former clients and continued to service their financial needs in violation of plaintiff’s strict, “iron clad” non-solicitation agreement .  Defendant challenged the non-solicitation agreement as overly broad and unenforceable, denied violating its terms, and claimed the clients were either long time friends or had sought him out after his departure, insisting that he continue to represent them.

Special Considerations

• • The company owner and the defendant had been friends, regularly socializing with and confiding in one another which contributed to strong emotions on both sides.
  • The amount of revenue generated by the clients serviced by defendant was modest.  Less than half a dozen actually made purchases or paid for services.
  • Discovery was far from complete, yet each side had already expended tens of thousands of dollars on the litigation.
  • Plaintiff employed a large staff of representatives/agents all of whom signed identical non-solicitation agreements.

The parties made serious efforts to resolve their differences on their own prior to mediation, but were unable to reach an agreement.

How Did PREMi Help?

PREMI offered the litigators a list of mediators with experience in handling non-solicitation agreements in the employment context.  The PREMi mediator that the parties selected then:

• Submitted a comprehensive and confidential written mediation agreement for the parties to sign before commencing the process.
• Encouraged design of a mediation process where the parties could articulate their perspective in their own words directly to each other in a joint session.
• Previewed party opening statements and persuaded defendant to replace a list of his personal grievances against plaintiff – a counter-productive strategy – with a heartfelt statement of regret at forcing plaintiff to initiate litigation and his good faith desire to resolve the dispute amicably.
• Moved quickly to identifying underlying interests and needs, moving away from a more traditional focus on legal positions and case law.
• Helped each side recognize its own needs and interests and understand the needs and interests of the other:
  • Plaintiff enterprise was most concerned about the 125 or so current employees who signed an identical non-solicitation agreement and were watching the litigation with interest. 
  • Plaintiff enterprise was not especially interested in a monetary settlement.
  • Defendant was most interested in ending the litigation, but concerned about settlement terms that might jeopardize his licensing.
  • Defendant was no longer interested in servicing the handful of clients formerly represented by plaintiff.
• After needs and interests were understood on each side, the lawyers were brought back together in a joint session where a list of acceptable settlement terms was hammered out.
• Listed each term on a flip chart as it was agreed to so that each side could see progress being made.
• Encouraged each side to sign the flip chart until a formal Settlement Agreement and Release of All Claims could be drafted

What Was the Outcome?

Plaintiff’s president was moved by the sincere opening statement made by defendant, which included a remembrance of their long standing former mutual respect and friendship, now lost.

The parties entered into a global, WIN/WIN settlement agreement that achieved their litigation goals, ending the litigation without paying damages, incurring further attorney fees and costs or experiencing disruption or distress.  Plaintiff was able to announce to current staff that the validity of its non-solicitation agreement was acknowledged, and defendant was able to get on with his life.

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Disclaimer: This summary is illustrative of the types of cases and the manner in which the PREMI associate dealt with the matter. Care has been taken to avoid disclosure of sensitive or confidential information.

Issue

When a national service provider, facing market and economic issues, dismissed a performing long-time employee, how did they come together to resolve the employee’s wrongful termination claims?

What Happened?

In light of stiff competition and narrowing margins, the company was compelled to implement cost-cutting measures, including the consolidation of sales territories and adjusting employee responsibilities.  The employee, terminated as part of the restricting, asserted that she was better qualified and had received more favorable performance reviews than other male workers who had not been terminated.

Special Considerations:

• The parties’ employment contract required a multi-tiered dispute resolution process involving peer review, mediation, and arbitration.
• Although dissatisfied with the outcome of the peer review process, the former employee could not realistically afford to retain an attorney for an arbitration proceeding.
• The company was concerned about the discriminatory nature of the former employee’s allegations, the history of some of the personnel involved, and the negative publicity that might result from protracted proceedings.
• Additionally, the former employee had a number of contacts within a relatively small community of people that could influence the company’s business.

How Did PREMi Help?

With the parties agreement upon the selection of a private facilitator, the PREMi mediator:

• To expedite the process and keep costs low, the mediator arranged with both parties to travel out out-of-state and conduct the mediation in the former employee’s hometown.
• The mediator conducted a series of separate and joint meetings with the parties throughout the one-day proceeding.
• By focusing on the parties’ distinct positions and pain points, the mediator helped them recognize the strengths and weaknesses of their respective arguments, and brought them together to identify and build upon common areas of agreement.

What Was the Outcome?

The PREMi mediator facilitated a solution that met both parties’ ultimate needs by:

• Focusing on the positives of the parties’ previous employment relationship
• Encouraging the company to provide its former employee with outsourcing support including a series of modest payments to help her reestablish herself in the work force, a prior employment letter with mutually acceptable language about the employee’s performance and reason for termination, and assistance with upgrading her resume and her search for new employment
• Protecting both the company’s public reputation and the former employee’s opportunities for new employment by obtaining agreement that the terms of the settlement be kept confidential
• Having the parties agree to not publicly disparage one another, and in the case of the former employee, not to engage in any activities or communications intended to impede the company’s business
• Fostering a respectful environment that resulted in each of the parties’ representatives concluding the mediation process by shaking hands and thanking one another for their cooperation in resolving what had initially been perceived as an irreconcilable dispute

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Disclaimer: This summary is illustrative of the types of cases and the manner in which the PREMI associate dealt with the matter. Care has been taken to avoid disclosure of sensitive or confidential information.

Issue

How did insightful mediation bring together a disgruntled employee concerned he was fired due to his race and an employer that believed poor job performance justified the termination?

What Happened?

An employer terminated an African-American employee, alleging that deficiencies in how he performed his job responsibilities warranted dismissal. The employee filed suit, claiming he had been treated differently than his Caucasian counterparts, and that his firing constituted wrongful discharge based on racial discrimination by one supervisor who only monitored his performance for two days.

Special Considerations

• After the plaintiff lost his job, he sought professional help, which led to the discovery that he had struggled with attention deficit disorder his entire life.
• Subsequent to the diagnosis, the plaintiff began therapy and learned how to manage his life activities around his condition.
• By the time of the mediation, he was holding down a full-time job and training others.

How Did PREMi Help?

After nearly a year of contentious courtroom litigation, the parties submitted to mediation, which proved to be no less contentious. The PREMi mediator allowed each side to state their positions, but each side dug in and held firm to their respective allegations and assertions.

Seeing that exchange devolve, the skilled PREMi mediator recognized an opportunity to ask a question to crystalize the real dispute between the parties, transforming an abstract notion into a definitive issue.

The mediator asked the plaintiff, “What is it you want from the company?” The man looked shocked, paused for a moment, then responded, “I just want my job back,” and proceeded to tell the group how losing his job caused him to seek counseling, which led to the ADD diagnosis. He acknowledged his challenges and explained how he was navigating those obstacles to become a better person and employee. He was certain he could overcome the issues he had experienced with his former employer to again do the “job of his dreams.”

What Was the Outcome?

The PREMi mediator called for a break in the proceedings to allow the employer’s management team to confer privately. Once they returned to the table a few minutes later:

• The defendants offered the plaintiff an opportunity to return to his old job, but at a different facility with “kinder and gentler” supervision, extra training, and resources to help him succeed.
• The regional COO agreed to personally support the plaintiff and give him every possible means to succeed in his job.
• A management representative who had been particularly hard on the plaintiff during the negotiation asked if the plaintiff would like to speak with another employee at the company with the same condition. The plaintiff responded with an enthusiastic “Yes!” and the representative said, “Normally, confidentiality and HIPPA would prevent me from giving you his name, but since he is my son, I’m going to anyway.”
• At that point, several eyes moistened, and the plaintiff realized he could now trust management to treat him fairly.

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Disclaimer: This summary is illustrative of the types of cases and the manner in which the PREMI associate dealt with the matter. Care has been taken to avoid disclosure of sensitive or confidential information.

Issue

When two brothers who jointly owned a collection of family businesses came to an impasse over the operation and possible division of the companies, how were they able to resolve their dispute and move forward?

What Happened?

Two brothers, each with a different lifestyle and financial need, owned several businesses equally between them.  The businesses were originally started by their father, who bequeethed them to his sons.  Under the brothers’ management and active involvement, the enterprises thrived, but serious disagreements arose regarding their respective salaries, perks, distributions, and strategic plans.

The conflict escalated to the point that one of the brothers filed suit against the other, which in turn prompted a counterclaim, with both sets of allegations based on purported breach of fiduciary duties, deadlock, and shareholder oppression.

Special Considerations

Ownership of the various businesses proved to be complicated:

• While each brother operated specific entities independently from the other, they both owned every entity equally
• The entities run by the younger of the two were successful, and he felt that his hard work and business intellect deserved a greater compensation package
• The older brother, seen as their father’s favorite son, had worked more and more closely with their father in starting the businesses
• The wives and children of both brothers also worked in their respective businesses and received many perks and became equally immersed in the feud between them
• Each brother was racking up significant legal and accounting fees to pursue his claims, and much of their their attention and energies were diverted from needs of the business
• Counsel for both sides recognized that they were on a course that would destroy the business that had supported the familly for two generations
• If the brothers did not stop the blood feud, the financial drain as well as the effect it had on the family relationships would have disastrous consequences.

How Did the PREMi Associate Help?

Counsel for the brothers agreed that it was in their clients’ respective best interests to to determie a better system for running the companies, and the court ordered the matter into mediation.  Counsel selected a PREMi mediator with extensive experience and a creative approach to resolving complex issues who then:

• Conducted a pre-mediation conference with counsel and the two brothers
• Suggested that perhaps the parties could agree on a form of binding arbitration to settle their disputes if mediation was unsuccessful, which the parties agreed could result in a substantial cost and time savings
• Agreed to serve as both mediator and arbitrator for the proceedings (commonly referred to a Med/Arb) at the request of both sides, after fully disclosing the benefits and ethical issues associated with the process

The mediator proceeded to conduct several sessions during which the various problem areas that existed in running the business were identified.  The mediator was able to get the parties to agree upon and implement temporary operational measures, and called for a a short hiatus. When the mediator called the parties back to see how they were doing with these measures, the parties told the mediator how surprised they were at their ability to address some of the operational problems, but advised that they still needed to resolve the financial hurdles, ownership issues, and other disparity between the two brothers.

Following another mediation session, it became apparent that the older brother was not interested in running the business and would instead have preferred, within a short period of time, to retire.  The parties then agreed that the younger brother would buy out his older brother’s interests, but disagreed on price and terms.  Based on the Med/Arb model, the mediator stepped into the prescribed arbitrator role and had the parties submit written pre-hearing briefs and schedule the subsequent arbitration phase of the proceedings.

Because of the knowledge acquired by the mediator during the mediation process, his own expertise, and his demeanor, the parties decided that they would forego in-person hearings.  Alternatively, they chose to submit in writing all arguments and supporting documentation (including expert reports, affidavits, and other evidence to support their respective positions) for the arbitrator to consider.  This shortened process allowed the arbitrator of review all of the material quickly and render a decision for a binding award less than one week later.

After reviewing the parties’ submissions, the arbitrator called counsel and the parties to appear and gave the parties and counsel one last opportunity to make any other statements or present any additional information. Little or no additional information was provided. Within one week thereafter, an award was issued and the parties were able to close the purchase and sale agreement approximately 30 days thereafter.

What Was the Outcome?

Because of the innovative Med/Arb approach that the PREMi associate employed, the parties successfully executed a purchase and sale agreement withing 30 days after the award was issued.  The litigation was dismissed, countless dollars, time, and energy were saved.  Most important, however, the brothers and their families reconciled and the businesses have flourished under the leadership of the one brother.

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Disclaimer: This summary is illustrative of the types of cases and the manner in which the PREMI associate dealt with the matter. Care has been taken to avoid disclosure of sensitive or confidential information.

Issue

When the patent holders of a manufacturing process and the investors funding its prototyping and launch hit an impasse over a development agreement, how did the two sides avoid litigation and get their relationship back on track?

What Happened?

The patent holders (also serving as the development team) faced financial pressures that threatened layoffs and caused a product launch delay.  Without more capital from the investors, they would be forced to secure alternative funding, but the investor group, wary of extending additional advances, viewed the delay as an indication of deeper design, budget, and operational problems.  An immediate resolution was needed to preserve the parties’ business relationship and move the enterprise forward.

Special Considerations

• The parties needed a neutral forum and location to resolve their issues.
• The stalemate between the parties jeopardized a relationship with a motivated prospective customer that needed to be reassured of the soundness of the manufacturing process and the stability of the parties’ association.

How Did PREMi Help?

PREMi provided background information on several associates qualified to mediate the dispute, and assisted the parties to select a specialist who then:

• Thoroughly explained the mediation process and expectations for resolution
• Conducted several separate conversations with the parties and obtained a copy of the development agreement and other relevant material to fully understand and frame the specific issues between them
• Required each party to prepare a memo, held in confidence by the mediator and not exchanged with the other party, which explained their allegations, arguments, risk, and possible liability
• Provided the parties with an outline instructing them how and what to prepare for the mediation hearing
• Counseled the parties to not only hold the hearing at the prospective customer’s office, but also encouraged them to have the customer attend the hearing as a non-participating observer
• Fostered meaningful dialogue and facilitated a working solution in the course of a single, one-day session

What Was the Outcome?

The PREMi mediator successfully resolved the issues – and tensions – between the parties allowing them to move forward:

• The development group invited the investors to visit the plant to demonstrate the integrity of the manufacturing process at the heart of the dispute
• At the plant, the development group performed specific tests and verification procedures, the satisfactory completion of which convinced the investors to commit additional funding
• The prospective customer gained greater confidence in the design, manufacturing process, and ability of the development team to deliver a quality product
• The parties quickly resolved their differences, restored their business relationship, and avoided prolonged, counterproductive, and costly litigation

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Disclaimer: This summary is illustrative of the types of cases and the manner in which the PREMI associate dealt with the matter. Care has been taken to avoid disclosure of sensitive or confidential information.

Issue

Faced with declining membership and a need to somehow change its direction, how did a church leadership group and other parishioners overcome differences with their long-serving pastor, make critical changes to the survival and growth of the church, and avoid litigation that would have sought the pastor’s removal?

What Happened?

Over a period of five years, a church experienced a tremendous drop in youth and young adult memberships.  The pastor who had led the church for over 45 years was respected and adored by the older members of the congregation; however, he was unwilling to change the method and style of his religious teachings, and the manner in which the church was organized. The church leadership group,comprised ofa mix of long- and short- term members, generally recognized a need for changes to enhance the church’s growth and development.  While a portion of the leadership group attempted to oust the pastor, others were in support of him remaining with the church.  In the meantime, various issues existed among and between the pastor, the church leadership group, and the parishioners.

Special Considerations

• All sides were determined to resolve the issues as expeditiously as possible, and because the church’s finances were in dire straits, no one was interested in going to court.
• The pastor claimed the church owed him a substantial amount of money, and did not feel that he was required to attend “gripe sessions”thathe felt were initiated by a few disgruntled members.
• The church leadership group supported the church as a whole, but several factions within the group and other parishioners differedon the path the church should take to move forward.

How did PREMi help?

A PREMi facilitator who possessed strong interpersonal relationship and communication skills assisted the church in reaching an agreement amenable to all of the parties by:

• Establishing and prioritizing goals and objectives for the overall facilitation process, and creating roadmaps and measurable benchmarks to ensure accountability and success
• Conductingboth group meetings and one-on-one sessions with parishioners at all levels to obtain information about the problems that existed and their concerns
• Facilitating larger group meetings to communicate input and brainstorm strategies for improvement
• Setting ground rules and norms to ensure maximum involvement and productivity
• Compiling information, identifying common areas of concern, and recommending areas for change

What was the Outcome?

The PREMi facilitator helped the parties come together and have meaningful communication regarding the issues. During their discussions, all sides became aware of specific needs that begged for attention, and as a result:

• The parties developed a new mutual respect and common understanding
• The pastorrevealed that he had been burdened by the church’s lack of growth, but felt that he could not leave the church in its current condition
• The church leadership group explained its need to take the church to another level in terms of activities and finance
• The parishioners communicated their fear of losing their pastor without having a contingency plan to ensure continuing leadership and guidance
• The parties mutually agreed to a severance plan for the pastor that allowed him to continue in a modified leadership role at the church, with acceptable compensation levels, while the church continued to re-establish and develop programs and activities that inured to the benefit of members at all levels within the congregation

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Disclaimer: This summary is illustrative of the types of cases and the manner in which the PREMI associate dealt with the matter. Care has been taken to avoid disclosure of sensitive or confidential information.

Issue

How did the family of a three-year-old girl, seeking compensation for injuries she sustained from a dog bite, utilize mediation to reach a settlement with the dog owner’s insurance company and avoid the high costs of discovery and prolonged litigation?

What Happened?

Two years before her family filed suit, the dog bit the girl in a scene witnessed by several onlookers.  The bite resulted in a scar, but without the need for reconstructive surgery. Efforts had been made to resolve the matter previously, and although both parties acknowledged that the case involved probable, if not clear, liability, the girl’s family and the dog owner’s insurance representative could not agree on the value of the case, prompting the family to seek damages in court. They did agree, however, to submit the case to mediation before engaging in extensive and costly discovery.

Special Considerations

• The girl’s mother was reluctant to subject her daughter or herself to the stress and pressure of a deposition and possible trial.
• The dog owner was willing to concede liability and sought to resolve the matter quickly; because he now lived out-of-state and had a job that required him to travel extensively in other parts of the country, he wanted to avoid the time and expense associated with his having to return to Michigan to attend court-ordered proceedings.

How Did PREMi Help?

Taking into account the concerns of the girl’s mother and the dog’s owner, the PREMi mediator:

• Thoroughly reviewed written summaries, copies of medical records, and photographs of the girl’s scar prior to the mediation proceedings
• Got the parties to agree that although the girl would attend the mediation with her mother, she would not be questioned, and would only appear to allow the dog owner’s insurance representative and the PREMi mediator to personally observe her scar
• Met with the girl’s mother, her attorney, the insurance representative, and defense counsel in a joint session to identify the expectations and objectives of mediation and to outline the mediation process

What Was the Outcome?

The PREMI mediator worked to resolve the parties’ dispute by:

• Giving everyone in attendance the opportunity to make short opening remarks, encouraging them to discuss why they wished to settle the case, then meeting with each party separately to discuss the strengths and weakness of both sides of the case
• Keeping confidential the family’s initial settlement demand and subsequent offers and counteroffers until the numbers were close enough that the parties were willing to allow the PREMi mediator to disclose the state of negotiations to both sides – after which the case quickly settled
• Getting the parties agree to a confidential settlement agreement,having them seek a consent judgment with the court in which the lawsuit had been filed, and executing releases and making payment within 30 days of the mediation conference

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Disclaimer: This summary is illustrative of the types of cases and the manner in which the PREMI associate dealt with the matter. Care has been taken to avoid disclosure of sensitive or confidential information.

Issue

In an automobile injury case involving allegations of an improperly designed, constructed, and maintained parking garage, how did the injured plaintiff and the garage’s owner, general contractor, subcontractors, and architects settle their differences efficiently and privately using facilitative mediation?

What Happened?

While riding as a passenger in a vehicle, the plaintiff suffered disabling injuries alleged to have resulted from design and building defects in the parking garage where the incident took place.  After filing a lawsuit against the owner of the garage, general contractor, subcontractors, and architects, the parties engaged in extensive discovery.  Although the defendants conceded that there was a problem with the condition of the garage, they were unable to agree on who was responsible, and also questioned the extent of the plaintiff’s injuries and whether they were pre-existing or aggravated by the incident.

Special Considerations

• The defendants did not want to take the case to trial because they did not want to be bound by any judgments that would bind them to redesigning and rebuilding the garage, nor did they want to incur the significant expense of a possible trial and appeal.
• During the discovery process, employees from each of the defendants testified critically about the other defendants, giving the plaintiff substantial ammunition against them all.
• The defendants would only agree to submit the case to mediation with the provision that any settlement 1) be confidential because of pending and anticipated future claims by others similarly injured, and 2) would not be an admission of liability for purposes of redesigning and repairing the alleged building/design defect.
• The plaintiff wanted to resolve the case at mediation to avoid the time, expense and, risks associated with a trial against multiple defendants.

How Did PREMi Help?

After the parties contacted PREMi and reviewed a list of qualified professionals, the selected mediator:

• Submitted a mediation agreement, with a confidentiality provision, for all parties to review and execute prior to the start of the mediation conference
• Expedited the process by having the parties agree to waive opening remarks (given that the facts were well known from previously completed investigation and discovery) and moving on to a joint opening session
• Met with each party individually, and kept discussions confidential until he was satisfied that the case could be resolved by disclosing the state of negotiations
• Brokered a meaningful resolution when it was clear to everyone presentthat the advantages of making a final concession to settle the case significantly outweighed the risk of continuing the litigation

What Was the Outcome?

With guidance from the PREMi mediator:

• The parties committed to a confidential settlement agreement and signed a memorandum of understanding calling for them to draft and agree upon a finalsettlement document, releases of the defendants, and a stipulation and order dismissing the pending court case with prejudice and without costs
• The defendants agreed to pay the plaintiff’s share of the mediator’s fees and expenses

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Disclaimer: This summary is illustrative of the types of cases and the manner in which the PREMI associate dealt with the matter. Care has been taken to avoid disclosure of sensitive or confidential information.

Issue

In a property damage suit resulting from a sewer failure, how did a homeowner and the municipality in which he resided come to an early understanding over the claims and defenses between them?

What Happened?

The homeowner experienced a flooded basement from a “dry weather” sewer backup, which caused substantial property damage as well as personal injury to the homeowner.  Looking for an alternative forum outside of the courthouse, he wanted to convince the municipality of the validity of his claim, and sought to resolve the matter promptly and reduce his own stress. The municipality was prepared to shield itself by claiming governmental immunity, and agreed to utilize early case assessment to investigate the fact necessary for its defense.  Both parties were genuinely interested in exploring an early settlement and avoiding drawn-out litigation.

Special Considerations

Though the case had been filed, discovery had not yet commenced when the PREMi mediator got involved.  In anticipation of litigation and with the aim of resolving the matter quickly and less expensively:

• The municipality wanted to determine the extent of the homeowner’s alleged damages, which included allegations that a substantial number of items had to be destroyed to mold caused by the sewer backup
• The municipality also needed to evaluate the personal injury claims in light of the fact that homeowner’s immune system was compromised due to cancer treatment he had been undergoing at the time of the incident
• Both sides were able to gauge how the homeowner would come across as a witness at deposition and trial given his frail health and highly emotional state

How Did PREMi Help?

After one of the parties contacted PREMi to assist in identifying a mediator with the necessary technical qualifications and municipal affairs experience, both sides decided on an appropriate specialist who then:

• Conducted several conversations with counsel for each party to discuss the objectives and expectations of the early case mediation
• Executed an Agreement to Mediate with confidentiality provisions, pursuant to which the parties agreed to defer formal discovery until completion of the hearing
• Permitted the municipality’s insurance representative to attend the proceedings
• Assisted the homeowner in categorizing his damages, and solicited the municipality’s reaction so thehomeowner could augment and refinehis claims
• Helped the homeowner to consider that satisfactory compensation for the property loss might lessen the need to aggressively pursue his personal injury claim
• Elicited critical facts regarding the homeowner’s compliance with statutory notice provisions, causing the municipality to reassess the merits of its governmental immunity defense

What Was the Outcome?

The PREMi mediator helped the parties realize that neither side had sufficient information to reach a settlement at the hearing, and persuaded them to focus on specific issues and tasks, including adding the plaintiff’s insurance agent and remediation and cleanup contractors to the lawsuit.  As a result of this process:

• The parties achieved mutual respect and improved their understanding of each other’s position
• The homeowner more clearly understood the procedural hurdles and uncertainty of his strategy
• The municipality developed a sense of how credible and sympathetic the plaintiff would be under examination, and reevaluated the viability of its governmental immunity defense
• Both sides were able to then direct their time, money, and efforts in a more cost-effective manner, and agreed to reconvene a mediation hearing when the additional steps were implemented and the necessary information became available

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Disclaimer: This summary is illustrative of the types of cases and the manner in which the PREMI associate dealt with the matter. Care has been taken to avoid disclosure of sensitive or confidential information.

Issue

After being rejected for a mortgage loan, how did a husband and wife interested in purchasing a property from a national homebuilder resolve their dispute with the builder over the return of their earnest money deposit?

What Happened?

Motivated to purchase a home in one of the builder’s new residential developments, the buyers made a substantial earnest money deposit on the property.  The couple also signed a purchase agreement containing a separate promissory note, contingent upon the couple’s ability to obtain a mortgage loan.  When the couple’s loan application was denied, however, the builder refused to cancel the purchase agreement and promissory note, and further refused to refund the earnest money deposit.  Instead, the builder offered to apply the deposit to another house if the couple agreed to enter into a new purchase agreement and release the builder from all claims relating to the initial agreement.

Special Considerations

• The parties’ purchase agreement provided for all disputes to be settled by arbitration, waiving all trial rights in court.
• The couples’ earnest money deposit made up a substantial portion of their liquid assets, such that they could not afford to engage the builder in time-consuming and expensive arbitration.
• The mortgage company that denied the couple’s loan was the homebuilder’s affiliate.

How Did PREMi Help?

• The parties came to the mediation table looking to resolve their dispute quickly and inexpensively rather than throw time and money at formal arbitration.
• The PREMi mediator focused the parties on the express language in the documents and the actions of both the builder and its lender affiliate, putting aside other facts and allegations that would have sidetracked the mediation.

What Was the Outcome?

With persuasion and guidance from the PREMi mediator, the parties reached a favorable resolution that included:

• Recognition by the homebuilder that there was substantial risk of significant expense and an adverse result if the matter proceeded to arbitration
• The homebuilder’s full refund of the couple’s earnest money deposit
• Nullification of the promissory note and purchase agreement
• Payment from the homebuilder for the couple’s legal expenses
• The couple’s agreement not to publicly disparage or malign the homebuilder

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Disclaimer: This summary is illustrative of the types of cases and the manner in which the PREMI associate dealt with the matter. Care has been taken to avoid disclosure of sensitive or confidential information.

Issue

When the parents of a special education student accused a paraprofessional of physically injuring her at school, how did the school district and the parents resolve the dispute and reestablish a positive and productive relationship?

What Happened?

The student, who hadmany severe and aggressive behaviors that were difficult to manage, was certified as emotionally impaired for special education entitlements.  One day, aspecial education classroom paraprofessional yanked the student’s arm while trying to help her and five other students enter the school bus. As a result, the student required treatment for a shoulder sprain and had a small contusion on her upper arm.  The paraprofessionalbelieved thatthe student was going to run away and that her safety was in jeopardy.  The student’s parents removed the student from the school, and threatened to file a lawsuit to recover damages for the physical injury and obtain reimbursement for private placement from the school district.

Special Considerations

• The parents were irate and highly emotional about the incident, refusing to meet with the special education administrator
• The paraprofessional had always been a stellar employee, and there had never been any previous complaints regarding the paraprofessional’s conduct
• The special education classroom teacher indicated that the student needed more intensive support and hadconcerns about the student-to-adult ratio in the classroom

How did PREMi help?

The school district contacted PREMi requesting assistance in having the parents consider mediation as an option:

• A PREMi representative contacted the parents to explain the mediation process and how they might benefit
• The parents were further advised about the confidentiality of the proceedings and the opportunity they would be given to express their concerns andpotentially reach an expeditious, mutually agreeable resolution

• Once the parents agreed to pursue mediation, PREMi provided both parties with biographical information regarding qualified professionals who could mediate the dispute

After PREMi worked with the parents and school district to agree upon a mediator:

• The PREMi mediator spoke with each party prior to the conference date to get a better understanding of their needs and concerns
• The PREMi mediator conducted apreliminary telephone conference during which bothparties identified the key participants, selected a convenient time and place for the mediation, and provided the parties with an outline suggesting ways for them to prepare
• During the four-hour mediation, the PREMi mediator provided ample opportunity for the parties to share there positions and perspectives, identified issues for resolution, facilitated a brainstorming session to come up with of potential options, and prepared an agreement for the parties to memorialize their agreement
• Once the parents agreed to pursue mediation, PREMi provided both parties with biographical information regarding qualified professionals who could mediate the dispute

What was the Outcome?

The PREMi mediator helped the parties regain trust in one another, address their problems jointly, and successfully resolve their dispute:

• The school district agreed to have the paraprofessional attend a day-long non-violent crisis intervention training
• The parties agreed to have an independent consultant conduct a functional behavioral assessment for the student and assist the school staff and parents to develop an individualized behavior intervention plan for the student
• The school district agreed to add an additional paraprofessional to the special education classroom who would initially be assigned to the student for extra support and to collect behavioral documentation
• The parents were invited to participate on a committee to review applications and interview prospective candidates for the new paraprofessional position

The student returned to school, the parents and school staff restored their collaborative relationship, and the parties avoided costly and prolonged litigation.

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Disclaimer: This summary is illustrative of the types of cases and the manner in which the PREMI associate dealt with the matter. Care has been taken to avoid disclosure of sensitive or confidential information.