Monthly Archives: February 2013

MEDIATION BASICS

King County and Pierce County now require mediation prior to trial for most disputes.  What is this process, and why is it required?

Mediation is an opportunity for the parties in dispute to have a conversation either through, or with the assistance of, a neutral and trained mediator.  Mediation is frequently and surprisingly successful, given that the same parties were previously so unable to reach a resolution that court proceedings were instituted.

Mediation must be distinguished from arbitration and from litigation.  Arbitration is a very formal trial-like process where an architect, attorney or other trained professional actually hears evidence and renders a decision.  Arbitration is usually required  when a contract provision so provides, or where particular industries that utilize interstate commerce are at the core of the dispute.  Mandatory arbitration under statute and court rules apply to many cases, but not all.  This varies upon the amount in controversy, the relief sought, and whether other statutes specify that the case must be tried before a judge.  Witnesses testify, exhibits are offered into evidence, and the submissions of briefs to the arbitrator make the process very much like a trial.

Litigation is a formal court process before a judge or jury, with witnesses and documentary evidence to support each party’s case.  Litigation of most disputes is open to the public, and a recording or transcript of the proceedings is made.

Once in the mediation, each party is usually given its own space to meet as a team consisting of the party, that party’s  attorney, the expert (if any), and key witnesses.  The mediator will sometimes start the parties in a common room for introductions, before breaking out into private sessions.  Some mediators assess the situation as not appropriate for a common session (for example, in highly emotional cases involving sexual harassment, bitter custody disputes, allegations of fraud, etc.).  The private sessions are to assist each party with assessing settlement offers and demands, with the private expertise of legal counsel, expert, and key witnesses.

The benefits of mediation are that the parties are able to fashion contractual remedies and agreements for themselves that arbitrators, juries, and judges cannot impose.  It is a favorite quote for judges to say, “The court cannot fashion a remedy for the parties that they did not fashion for themselves.”  Mediation is an attempt to do exactly that…the parties themselves are in control of the outcome.  If you do not receive an acceptable offer, you leave the mediation and proceed with the arbitration or litigation process.  If you do receive an acceptable offer, a new agreement is drawn up between the parties to utilize going forward.

The selection of the mediator can be critical to whether the case settles.  A mediator with expertise in the particular area of the dispute can be extremely useful to open up the world of possible solutions to the thorny problems that brought the parties into dispute.  If your mediator actually worked as a realtor for twenty years, then served on the ethics panel, then served as a financing broker for the real estate division of a bank, this mediator would bring a unique skill set to your real estate dispute, but possibly very little substantive expertise to your employment dispute.  Even so, training in conflict resolution, building trust, drafting lasting agreements, and just maintaining a peaceful presence often does the trick.  Don’t write off the mediator for lack of specific technical expertise.

Mediators attempt to move the parties from blaming each other for what happened yesterday toward a focus of moving forward efficiently, cost-effectively and into a lasting resolution.  The success rate of mediation remains at over 90%.  It is therefore usually a good use of time and money.  The same cannot often be said for litigation, but obviously where another party refuses to recognize their own obligations, litigation and arbitration are sometimes required to preserve rights and enforce remedies.

COURT VALIDATES GIFT OF REAL ESTATE BY QUIT CLAIM

YAY!  Please indulge me in expressing sincere happiness for my clients who recently won their case on appeal with the excellent assistance of Ken Masters and Shelby Frost Lemmel.  I was trial counsel for this matter, and we fought hard at trial to defeat the claims of breach of an oral contract to devise, duress, unconscionability and fraud that were claimed by the disappointed parties that believed they would inherit a cabin.  Instead, when the decedent finally died, they learned that he had quit claimed the property to his nephews, my clients, before his death.

The trial court found that although the allegations of fraud, duress and unconscionability would not stand, the quit claim deed was not valid because it had not recited “consideration.”  We argued that no consideration was necessary for a quit claim deed.  The trial court disagreed, stating that the standard form in Washington requires it.  My client appealed, and chose the law firm of Ken Masters to handle that.

What an excellent choice!  Ken and Shelby utilized recent Washington case law to point out that the requirement of consideration in a quit claim has never been imposed.  You can read the opinion at:  http://www.courts.wa.gov, and it is styled:  “Dennis Bale, Respondent / Cross-Appellant v. Robert E. Fletcher, Appellant / Cross-Respondent.”  The opinion was released on February 11, 2013, Division I, Docket number 07/08/2011.

 

WAGE CLAIMANT WINS PARTIAL SUMMARY JUDGMENT

Both Washington law and federal law are clear that simply calling a wage earner an “independent contractor” does not make it so.  We recently won a partial summary judgment in our client’s favor by demonstrating that the written contract, the business license, and the requirement that he submit invoices in order to be paid his wages were sham constructs devised by his employer.  The court reviewed the evidence and agreed.  We now will proceed to trial on the only issue remaining — how much he is owed.

This firm advises clients on both sides of the employment table.  We routinely advise business owners that the manner in which parties themselves approach the relationship will govern whether it is legally found to be a true independent contracting relationship.  If you are a business owner and you need help to achieve your business objectives, seek the guidance of an attorney to determine what is — and what is not — likely to be viewed as a truly independent relationship.  The old “control” test has been set aside for the newer “economic realities” test.  If this position is the sole or primary means of supporting the wage earner, it is likely to be found as employment and not independent contracting.

Paying payroll taxes, overtime, and insurance for employee conduct is a challenge for small businesses.  There are benefits to both employment and independent contractor relationships.  Seek good counsel to determine how far you can go, IF you can go, in either direction.

If you are a wage claimant, do not be discouraged by the fact that you signed a document stating you are just an independent contractor, and have agreed to be paid if and when the owner is paid for your work.  Such agreements are not enforceable if you truly were employed by the business and dependent upon your earnings there as a sole means of support.

ENGINEER SUED FOR REFUSING TO ALTER REPORT DISMISSED FROM CASE

I recently had the pleasure of giving my client the good news that he was dismissed from litigation “with prejudice.”  This meant that he was out, for good.  The homeowner that sued him could not re-file the claim against him after trying to find evidence to support her claim.

The homeowner bought the house as a “tear down.”  However, her project turned more expensive and complicated than she had anticipated.  After firing the first contractor, she engaged a new general contractor.  That general decided to hire an engineer to monitor progress on the project.

As the homeowner believed the second contractor also did not perform well, she terminated him.  She then demanded that the engineer alter his report to reflect her own view about the second general contractor’s work on the project.  If he refused, she would sue the engineer.  The engineer responded that the report was accurate, and he refused to alter it, even to avoid being sued.   Eventually the project ended up in litigation, and the homeowner sued three of several contractors she had hired on her project, and the engineer.

As they say, “Happiness is not whether you win or lose, it’s how you place the blame.”

In this case, however, the engineer had no contract with the homeowner, and had not designed the plans and specifications for the project.  Those recommendations that the engineer had made after the homeowner expressed her unhappiness had been rejected, because they would have required even further investment in the project.  The engineer engaged me to defend him in the suit.

The engineer argued that he had no contractual duty to the homeowner, as his client was the second general contractor.  He argued further that the real reason he was sued was not because he did anything wrong on the project, but because he had refused to cave to the homeowner’s pressure to alter his reports.  The engineer maintained that his reports were accurate and therefore he had no duty to alter them.  Accurate reports could not form the basis of any misrepresentation claim, either.

After filing the motion for summary judgment, the homeowner’s attorney acknowledged the complete lack of evidence supporting the claim against my client.  Although a year to defend an unwarranted suit was too long (the plaintiff changed attorneys three times), the final result was complete and total vindication for the engineer.

I am very happy to have been able to provide this result to my engineer client.  The cost to defend the litigation for over a year, including multiple sets of discovery, a site visit, and the drafting of the motion for summary judgment,  came to less than $10,000.  While that seems like a lot to an engineer that was paid far less than that on the project, his reputation and professional integrity emerged intact.  Sometimes, happiness IS whether you win!

 

AGE DISCRIMINATION — The Statistics are In, and It May Not Be “You”

When a person over the age of 50 loses a  job, it is natural and obvious for a Human Resources consultant to view the job history and focus on the one thing that the worker and consultant can change — the profile of the worker.  More training, a better resume, a new look, some better “people” skills, and new interviewing skills can all help.  Moreover, those are things all within the worker’s control.  When you’re down, the impulse is to DO SOMETHING.  Following that impulse can make one feel better, more in control, and provide a positive outlook that translates to a brightness and warmth during job interviews that will translate well.  This positive outlook can even be transmitted in the way one composes a cover letter and the word choices the worker adopts in resumes.

However, it is discouraging to go through all of those processes and realize over time that the percentage of interviews is not increasing, or the percentage of second interviews is not increasing, and certainly the percentage of offers is not increasing.  Sometimes, it is uncomfortable to confront the reality that, “it isn’t you.”

The New York Times published an article on Sunday, February 3, 2013 (available on-line) supporting this reality with the statistics available from the federal Department of Labor for the post-recession hiring data.  The reality is that the bounce-back after losing a job for a person in their fifties, most definitely, is statistically low.  One woman in her early fifties is quoted as saying, “they see the gray hair…” and it’s over.  The fact is, most employers are savvy enough to not say, “You look kind of old for this position,” but the reality is that older workers are not favored, for a variety of reasons mentioned in the article.

I will mention another reason, and that is that older workers can be, or are perceived to be, less flexible.  While I personally enjoy working with folks my own age, and enjoy the wisdom that years of experience bring, I know that my own attitude has changed dramatically away from “I’ll scrub the toilet if you say it’s part of my job description” to “I don’t think so.”  With added years come a sense of some entitlement.  However, many older workers do not have that attitude, and it is unfair to blanketly assume that they will not be as eager to follow directives, take instruction, or learn new skills.

What are your options?  A good HR consultant will already have assisted you with: (1) confronting that bias head-on, both in your cover letter and in your resume.  Use specific language that highlights learning new technology, new skills, and seeking out new assignments and information.   (2) Highlighting very recent achievements, even classes that you have taken outside the work place, even if it is yoga or karate.  (3) Emphasizing your ability to work with and take direction from all levels of the team, and to get along with a very diverse work place.  While some people think of diversity in terms of racial or religious contexts, you can specifically state that your last work place had a diverse group of all ages (if that is true).

If you still meet with resistance, consider starting your own consulting business.  DO NOT do this without getting some legal assistance up front.  An hour with an attorney to help you understand the differences between true employment and independent consulting is important.  Without this, you cannot possibly know how to accurately and yet competitively price your services.  In addition to meeting with an attorney, understand that the law on this — while fairly uniform under federal statutes — is NOT uniform under state laws.  Simply reading up on the internet has led many a person to make critical mistakes.

Being your own boss is sometimes not easy, but for many workers, failure is not an option.  Retirement at age 66 may still be over ten years away.  Working to generate business, send out invoices, track payments, market and advertise, stay on top of assignments, etc. are all part of the turf that may be very new to somebody that has been “in corporate” for over twenty years.  But those years of experience are valuable.  The company that did not want the older employee may be willing to pay a premium for that expertise, without the potential headache of dealing with the new employee who won’t take direction from the younger manager.  Of course, the consultant almost always bows to the directive of the client — there is no question who holds the reigns of power in that relationship.

Additionally, the issues of benefits, insurance premiums, taxes, and other employment hassles do not exist with the independent consultant relationship.  Instead, there are delicate matters of confidentiality, intellectual property, non-compete agreements, bonuses for hitting targets or deadlines early, and other matters that are a “given” with true employees in some industries that must be negotiated with truly independent contractors.  But sometimes, the only thing to fear IS fear itself.  Take the initiative, and give it a try.  If YOU are willing to invest in you…eventually, others will too.