Pioneers on the Horizon: CL in Employment Disputes

Pioneers on the Horizon: Collaborative Law in Employment Disputes 

By Michael A. Zeytoonian

             Too often we believe that a narrow legal solution is the best outcome when, in fact, there may be numerous ways in which to address a problem or situation. Our value as lawyers increases when we are able to direct people to the appropriate resources they need…The Middle Way [of Buddhism] represents the merger of the attorney personality and the lawyer’s soul.  Buddhism seeks the Middle Way, the right balance between extremes…Though the Middle Way is a place that some lawyers aspire to occupy as they engage in their craft, most of us fail to achieve it.  Within the law, we are constantly pulled between various extremes – between law and justice, between truth and procedure, between theory and fact, between loyalty to the client and loyalty to the court, and for some between wanting to do well and wanting to do good…When we can’t find answers that satisfy both sides we tend to try to find a place in the middle where everyone can feel comfortable, or at least can accept the decision.  Though there is enormous benefit to this approach, what it also does is deplete many decisions of any meaning and any meaningful function.  The middle way is not ‘splitting the difference’, but finding the ‘right path’ or appropriate way to resolve a conflict or to live one’s life.  Lawyers are not called to just split differences, but to seek what is appropriate for the parties before them, not just in a legal sense, but with respect to the whole situation and the various aspects of the needs which are presented.   

                                          --From The Spiritual Revitalization of the Legal Profession; A Search for Sacred Rivers, by David Hall, The Edwin Mellon Press, 2005.              

Introduction & Observations: 

Civil Collaborative Practice (“CCP”) contemplates the application of collaborative law (“CL”) in resolving disputes in practice areas other than family law or divorce cases.  CL practice groups around the United States and Canada have been working to introduce the use of CL, its process and approaches with limited success in business disputes, probate, employment and medical error cases.  To date, many CL lawyers have utilized the principles and varying amounts of the CL process and elements in their dispute resolution.  However, there have been few “fully collaborative” civil cases, i.e. cases in which the parties and lawyers have signed a participation agreement with all the elements of the traditional CL model.   

In October, 2004, during the International Academy of Collaborative Professionals (“IACP”) Forum in Boston, practitioners from several groups met for an organizing session and took up more globally the discussion of promoting the use of CL in non-family cases.  Follow-up efforts led to the creation of an IACP Civil Task Force in 2005 and formal marketing research conducted by Liz Ferris of Ferris Consulting.  As part of those efforts, the IACP and several local CL practice groups sponsored a Weekend Retreat of the IACP Civil Task Force in Chicago in August, 2005.  The recommendations of the Civil Task Force were adopted by the IACP later in 2005.  Two other major developments with respect to the development of CP followed: For the first time, the IACP dedicated a “civil track” of workshops held during its annual 2005 Forum in Atlanta.  Second, the IACP created a standing CCP committee to further the progress and promotion of CCP. 

The Civil Task Force identified several practice areas to be targeted for the first efforts of promoting the use of CL, including probate, medical error, employment and family or closely held businesses.  It also identified non-profit and religious organizations as an ideal market, not only for the application of CL in their disputes, but also for the purposes of marketing CL.  The Civil Task Force also recommended the adoption of the “Collaborative Commitment”, which articulated the essence of CL.

This article focuses on the application of CL to employment disputes.  It addresses the fundamental preliminary task of triaging an employment-based dispute to determine whether it is a good candidate for the use of CL, identify the factors that make an employment dispute a good candidate for using CL and grapples with some yet unresolved and unsettled CL practice issues as they apply to employment situations. 

This writer takes the view that CCP is still in its embryonic stages and evolving slowly.  I caution against the temptation to resolve the unsettled issues prematurely with preconceived ideas based on experiences within our sister family law models, in much the same way we would train a CL practitioner in a CL process not to jump in and suggest the solutions to the parties that are obvious to him.  Like conflict engagement, this evolutionary process needs to simmer; civil CL cases need to be worked through without rigid models and pronouncements of what is and what isn’t CCP.  The best and most effective CCP models, protocols, participation agreements, etc. will come to us, if we collectively allow them to come.  The basic tenets, principles and elements of CL and CCP are very much a part of our awareness; a time for some experimentation and trial and error is necessary to move forward.     

It is interesting that at this juncture in the evolution of CCP, most if not all the unsettled areas and challenges we identify have to do with what happens should the CCP process not succeed in producing a favorable resolution of the conflict.  Is this the overdeveloped lawyer in each of us (and perhaps our underdeveloped marketing instincts), always anticipating problems and preoccupied with solving them, even though we know many of them will never come to pass?  Perhaps these concerns collectively reflect our training with a civil procedure that is geared toward trials that 98% of the time do not happen.  Similarly, I wonder if our preoccupation and hand wringing with post-process issues like the disqualification clause and the transitioning and disclosure to litigation counsel are little more than red herrings that the natural evolutional development of CCP will take care of by itself.  I trust it will, and suggest that we proceed with faith in the process, trusting in its power to resolve tomorrow’s concerns.

There are differing views within the CCP community about the role of the in-house counsel (“IHC”) in the CCP process, about whether the Collaborative Commitment is satisfied in employment cases by the individual disqualification of the collaborative lawyer of a firm, whether the firm may continue to represent the client as its litigation counsel through the use of a firewall (formerly referred to as a “Chinese wall”).  Entwined within these issues is the question of how we handle the transition from CL to litigation counsel, specifically what is protected by a confidentiality agreement, what gets turned over to the litigation counsel and what does not.  Again, let us be grounded by the reminder that the CCP movement is still evolving.  While some established structures and protocols are necessary so that CCP can properly and uniformly be taught, promoted and applied, now is not the time to make “etched in stone” pronouncement about what is and what isn’t CCP. 

Just as not every case is right for arbitration or mediation, not every case is a good candidate for utilizing CCP.  If one or more of the parties feel it is important that some new law is made or that some legal issue must be clarified, than that case needs to be litigated.  If the only issue that needs resolution in a case is the amount of money to be paid in damages, then case evaluation, binding arbitration or litigation are more effective vehicles than CCP.  But if there is an expanded pie of interests beyond money and if preserving relationships is important, it is likely that CCP will be a good fit for the dispute.  To advance the movement, establish credibility and purpose and clearly define our niche, it is critical that CL lawyers acknowledge that not all disputes are good candidates for CCP.  In our eagerness to sign on collaborative cases, we need to be mindful that mismatching CL with cases that are not good fits will do the progress of CCP far more harm than good, and will likely fail to best serve the client’s needs.

What should practitioners be searching for in triaging a dispute to see if CCP would be a good fit?  A colorable claim; interests that are well served by CL; a commitment by both clients and counsel to an agreement at the outset to pursue settlement by intention; the ability to create a safe container of trust; a vehicle or set of circumstances that facilitates the collaborative commitment; the need for confidentiality; the need to preserve relationships, and opportunities to expand the pie and serve client interests through some out of the box options.  The case doesn’t have to have all of these elements, but the more it has, the better the candidate for CCP.

a.  A colorable claim; This is a critical determination, not only in the life of the specific case, but also as it effects the reputation of the CCP movement.  CL practitioners should only be suggesting as good candidates for CL strong cases that have merit and depth, not weak or borderline cases.  The CL attorney should know that a prima facie case can be made without relying on something to turn up in discovery.  CL must not be viewed by the legal community and the defense bar as a mechanism used by lawyers who don’t feel strongly enough about their cases to commit to litigation and instead try to get a quick settlement. In fact, one concern expressed by an IHC of a large corporation interviewed during the 2005 Task Force’s marketing research was that if the company utilized CL, it may be viewed by its employees as an easy mark or a quick settle and encourage those who had questionable or bogus claims to try to use CL.  In order to gain credibility, both individually and for the CL movement, it is incumbent upon CCP practitioners to weed out the bogus and weak cases.

            In a very real sense, our effective triaging of cases as CL lawyers is a strong response to the previously mentioned reservation about CL expressed by an IHC.   Screening out all but the strong, colorable claims, actually works to the benefit of the employer’s in-house counsel.  It also gives us credibility so that when we come with a case and suggest that CL be utilized, our suggested is given more weight and consideration by IHC.  After all, a weak claim would never withstand the early going of CL’s open and full disclosure of all relevant information.  The CL process would quickly expose a weak or baseless claim for what it is and the CL process would come to a quick and justifiable end, and lose credibility for the CCP movement.        Secondly, it would be inconsistent with the values and philosophy of CL (honesty, respect, openness, transparency, trustworthiness, integrity) to bring a weak or non-colorable claim to the CL process.  Our reputation as a CL community will either be honorable ands trusted because we only bring colorable, serious claims as candidates for CL or it will be weakened if we bring frivolous, meritless or weak claims.     

Why CCP vs. mediation?

      The above triaging process may beg the questions:  If it’s a strong enough claim to warrant using CL, then is CL necessary or will employer opt to just resolve the dispute through mediation?  What is the advantage or the value added of CL over mediation in these situations, which are probably the only situations in which a large employer will consider using CL?   

     If you have a CL lawyer representing the employee and the IHC is also trained as a CL lawyer, you probably won’t need a mediator so there’s a cost savings.  Second, CL lawyers approach the conflict from the outset of the process with the intention of settlement by design and will utilize interest-based negotiation rather than with adversarial positional bargaining.  The latter is often used by litigants, even in a typical mediation scenario.  There is no doubt that the style, dynamic and depth of the mediation is decided differently when it is done with CL lawyers as opposed to litigators.  Using CL with trained CL attorneys will improve the chances of expanding the pie and finding more interests.  The more interests there are, the more options can be developed.  If there is going to be a deeper, more meaningful and complete resolution, one that serves to cure rather than just treat the problems, and one that will likely have a more long-lasting, positive impact on the parties and their ongoing relationship, it is far more likely to come from the CL approach than from traditional mediation.   

Third, if there is a need to retain experts, the CL process allows for the joint retention of an independent, neutral expert working with both parties and coming up with more objective, mutual findings and a saved cost for both parties.  The expense and inefficiency of expert discovery that usually only leads to a battle of the experts is likely to still be a part of traditional mediation, where the CL process eliminates it by design.   Fourth, the open exchange of relevant information by the parties, an integral part of the CL process, occurs early on in the CL process and is done in a more efficient, honest and transparent way than typical discovery is done in litigation.  Mediation, if it is done outside of the CL process or as an alternative to CL, is less desirable than CL for one of two reasons:  1. If mediation between parties occurs before litigation is initiated, there has likely been no efficient, designed process for the exchange of relevant information.  This puts parties in a position of assessing and considering a settlement without having the information necessary to make an informed decision.  2. If mediation occurs during litigation, it usually comes only after traditional discovery practice has been completed, including costly depositions and other discovery devices and the often-unnecessary motion practice that accompanies contentious discovery.  By then, important relationships probably have been damaged or destroyed and the litigation has already taken its toll on the resources and emotions of the parties.  The parties will have become entrenched in their positions and trust has most likely eroded.  All these factors handicap the mediation that occurs later in litigation, making it less likely to bear as meaningful and as complete results as those coming from either the CL process or the kind of mediation that occurs within the CL process.  

b.  Interests that are well served by CL; In employment disputes, there are often interests other than money damages.  These might include the continuing or future employment of the employee with the company, the desire for the work culture to change, the desire for an acknowledgement of harmful behavior and for an apology, the need for preventive training about discrimination or harassment, the desire for disciplinary action to be meted out against wrongdoers, the desire for the complainant to leave the employ of the company or to be separated from a department or individual, the need for positive references and/or assistance in finding subsequent employment and the need for privacy and confidentiality. 

There may also be ways, outside of the confines of the employment relationship, in which the employer can meet an interest of the employee or vise versa that are seldom explored.  There may also be creative work arrangements that can be designed and temporarily implemented to defuse any situation and calm any stormy work atmosphere, while the collaborative process is working toward identifying and meeting interests.  All these interests and others that can be discussed and molded into options to be included in eventual resolution are more easily identified when the parties and lawyers are focused on the interests of both parties and not entrenched in adversarial positioning.  But, the case must be one in which interests can be clearly identified that would be better served by the CL process than the litigation process.         

c.   Mutual commitment to settlement by intention; It its purest form, CL is a written agreement in which the parties and lawyers make a commitment to neither litigate nor threaten litigation, to openly and honestly disclose all relevant information and documentation, and to work from the outset of the endeavor toward settling the matter in a way that best meets the interests of the parties.  This commitment is critical and is more than just procedural.  It is not enough to agree not to file any court papers or complaints.  The mindset, the focus and the intention, from the beginning of the effort, must be aligned with the purpose of settlement of the matter.  The lawyers in particular must share a mutual commitment, by their actions and words much more so that on paper, to work together to meet the interests of the parties and resolve the matter.  There can be no slipping back into litigation mode, no functioning in the shadow of the law dividing a lawyer’s focus such that the lawyers’ ears may be listening the parties’ to identify interests, while his eyes are looking for cases to site to support a position.  The commitment must be shared and it must be real.  For these reasons, many lawyers who begin practicing CL while still litigating soon make the career determination to stop doing litigation cases altogether.

d.  The creation of a container of safety and trust & confidentiality; Family law cases have shown us that in divorce cases, the disqualification clause is an effective vehicle for creating and facilitating the maintenance of a container of safety and trust.  If the parties in employment cases can agree to the disqualification clause, it would provide the same container in employment cases.  But, for the reasons stated below in the discussion of using firewalls in outside counsel firms, it may be awhile before employers will agree to giving up the law firms who have represented them.  In the meanwhile, in order to be able to utilize CCP in employment cases, the lawyers, while triaging, must be looking for that set of factors that will successfully keep and preserve the container that provides safety and trust for the parties. 

For instance, if a sexual harassment case involves a nonprofit or religious organization and the victimized employee is still employed by the alleged perpetrating organization, those facts, coupled with the mutual commitment of the lawyers and parties to pursue settlement by intention, may be enough to create the safe container.  Each party has a strong incentive to keep the container of safety and trust intact and a strong disincentive to litigate this kind of case.  The non-profit organization employer does not want the matter to be a public matter because it will have serious adverse impacts on its ability to raise funds and it will impact its reputation in the community.  The victim also needs a confidential, safer process to minimize the emotional strain as opposed to litigation and a process that levels the playing field with respect to any possible economic imbalance.  Both parties need a faster resolution that litigation can provide.  So here, the factual circumstances, combined with the mutual commitment of the lawyers to serve their clients’ interests by not litigating the matter but to work toward settlement by intention, create the safe container.            

            The facts in some circumstances, or the intention, presence and reputations of two collaborative lawyers, will sometimes serve the same purpose as the disqualification clause and facilitate the achieving of the collaborative commitment.  Collaborative lawyers working in employment cases are encouraged, as part of the triaging of a potential CCP candidate, to seek and find either the necessary factors or will include the contractual terms in the participation agreement that can effectively be substituted for the disqualification clause.  This is necessary until such time that the disqualification clause element of the CL process becomes a non-issue.

e.  The need to preserve relationships:  One of the reasons the IACP Task Force identified non-profit and religious organizations as a good target market was because in these and other “mission-based” organizations – schools, colleges, hospitals and other health care centers, foundations, museums and arts-based organizations – there is a desire and a need to maintain business relationships.  The same need to preserve relationships is also likely true of some probate proceedings, family and closely held businesses, etc.

f.  Opportunity to expand the pie and serve client interests through out of the box options; The greater the interests that can be identified, either while triaging or in the earlier stages of the CL process, the better the case can be served through utilizing CL.  In harassment or discrimination cases, frequently the victim and sometimes even the employer recognize the interest of changing the culture.  That interest can be satisfied by including preventive or awareness training in the options identified for resolution.  The victim’s need for an apology is another such interest.  A realigning of certain employees may also meet an interest.  The willingness of the employer to find and help secure the victim a desirable job with another employer may also satisfy both the employee’s desire to find another job and the employer’s interest in defusing a charged up work environment.  

     In one discrimination case, my client’s interest was nothing for herself, but rather that the employer should do something to monetarily help another former employee that my client felt had been more adversely impacted by the alleged discrimination than she had been.  That option could never be a part of a litigation outcome, but it could be worked out as part of a CL resolution.  Because CCP is focused on satisfying parties’ interests rather than defending one party’s position while simultaneously attacking the other’s position, it can contemplate out of the box solutions.  In some cases, satisfying one party’s interests may not necessarily by adverse to the interests of the other party; in fact, sometimes the same solution may satisfy both interests, resulting in the desired win-win outcome.