Co-authored with colleague Adam J. Halper, I am pleased to share this article written for New York Dispute Resolution Lawyer. Originally printed: NYSBA New York Dispute Resolution Lawyer | Fall 2018 | Vol. 11 | No. 2.
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The facts underlying many disputes can be very simple. Others may be more complicated. In either case, when preparing a pleading, motion papers, or testimony for a court proceeding, the goal for the attorney and the client should be to tell a straightforward and compelling story, as simply as possible.
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The persistent mediator will periodically check back in with the attorneys to learn what has occurred and to see if the new realities, or even just the passage of time, might result in the parties being able to pick up where they left off and try to overcome the seemingly insurmountable divide.
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We know when a mediation begins. The better, and often more challenging questions are: when has it ended and was it successful? If at the end of one or more agreed-upon sessions the parties settle all of the issues in the dispute, the answer is an easy one—perhaps.
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In a mediation, after learning the basic facts and issues in dispute, the mediator will work to identify each party’s interests and needs; this is different than a party’s “wants.” If a party has not already focused on her interests and needs, the mediator will help her do so. In this way, the mediator can help each party craft proposals that address her interests and needs and those of her adversary. The beginning of the road to settlement.
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Employees are only entitled to severance if provided for in an employment contract.
Severance, where provided for in a contract, can, especially with senior-level executives, be for quite a large amount of money. If there are severance provisions, typically there will be contractual definitions of termination for “cause”; in those instances, employees terminated for “cause” will usually not be entitled to severance.
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New York is an at-will state. If the employee does not have a contract entitling her to continued employment for a period of time and/or setting forth grounds necessary for termination, and if no discrimination is involved and the law is not otherwise violated, an employer can discharge an employee at any time for any, or no reason.
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The parties have been at it for a while, without coming to an agreement. When is the mediation “over”? In any mediation, the parties and the mediator may view the give and take differently. From the parties’ standpoint, they may think it’s over as soon as they receive the first demand or offer from the other side. If that demand or offer is significantly higher or lower than they expected, they may immediately feel that they are too far away for the mediation to be successful.
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Must your agreement be in writing to be enforceable? The answer is: Yes. Or no. In the world we live in, we make agreements with other people, with companies, and with other businesses. Sometimes they’re formal and in writing, but other times (in the real world), they are not. Can that agreement be enforceable if it’s not in writing? It could be. If it is in writing, is it foolproof?
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I described a pilot mediation program launched that month by the Commercial Division of New York County Supreme Court to supplement its existing mediation program. That pilot program ended in late January of 2016; however, the Commercial Division has now launched a new pilot mediation program, as well as an expansion of the existing Commercial Division program.
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