MEDIATION

Steven Cesare, Ph.D.

Another disenchanted business owner from California called me the other day to discuss a recent employee legal issue. Apparently one of the business owner’s Maintenance Laborers reported to work on a Monday morning, one month ago, alleging he incurred a job-related injury the previous week while working. Consistent with the Company’s Injury Reporting Protocol, the Safety Coordinator immediately escorted the Laborer to the approved occupational health clinic for an assessment. Simultaneous to that assessment, the Laborer’s Field Supervisor conducted his investigation of the job sites the Laborer worked on that week, interviewed the Laborer’s fellow crew members, and talked with other employees who saw the Laborer on Friday of that work week. None of those interactions yielded evidence that the Laborer experienced a work-related injury, commented on any bodily pain, or filed a claim with his supervisor.

The occupational health clinic diagnosed the Laborer’s condition as a severe back injury with impact on his upper body, preventing him from doing any work requiring him to lift anything weighing two pounds or more. Given standard landscape functions, modified duty for that medical limitation was not available. Thus, the Company informed the Laborer it would not be able to provide accommodation for his injury.

Shortly thereafter, the Workers Compensation company denied the Laborer’s claim, suggesting his injury likely occurred outside normal work hours. Given the lack of available modified duty and formal denial of his medical claim, the Laborer voluntarily resigned his position without incident.

A week later, the Laborer filed a workers compensation lawsuit against the Company for $900,000.

And you wonder why California business owners are disenchanted?

Thanks in large part to the Company’s Employee Handbook Alternative Dispute Resolution Policy and required Arbitration Agreement for all employees, the Laborer’s Attorney chose to resolve this conflict through Mediation.

Mediation is one of the three primary legal dispute resolution techniques: mediation, arbitration, and jury trial. Mediation is the process by which a neutral third party (mediator) facilitates negotiations to help disputing parties reach a mutually acceptable resolution. It is often confidential and frequently used in employment or family disputes. On the other hand, Arbitration is when a neutral third-party arbitrator (i.e., often a retired District Court judge) reviews evidence and hears arguments before making a binding or non-binding decision to resolve the dispute; this scenario approximates the Judge Judy television show of years past. And finally, a jury trial is the formal mechanism involving extensive deliberations, discovery, fact finding, jury selection, witnesses, bailiff, etc. As we all know, most companies strenuously avoid the time, cost, and invasive nature of a jury trial.

On Day 1 of the three-day mediation process, the mediator got the Laborer’s attorney to reduce the requested settlement to $400,000. For the next two days, the Laborer’s attorney said the Company was lying to the mediator, used extensive coercion, and openly discriminated against the Laborer due solely to his work-related injury. In response, the Company provided its panoply of first-hand documentation including statements from co-workers, the formal investigation by the workers compensation vendor, and especially, the written paperwork from the Laborer himself stating he resigned his position voluntarily.

All for naught.

On Day 3 of the mediation, the mediator filed his decision in favor of the Laborer for $68,000 (i.e., $33,000 for the Laborer and $35,000 for his attorney) due solely on the fact the Company made its decision to not offer modified duty work to the Laborer (i.e., two pound weight limit), without first engaging in the 4-step Interactive Process, which the mediator stated may have possibly identified a type of available modified duty the Laborer could have performed without lifting anything weighing two pounds.

Lest you too begin to feel disenchanted, remember that some documentation, a basic investigation, and personal testimony may still be insufficient to justify your evidentiary position, if any aspect of required legal guidelines is not fully addressed; even if it involves landscape work requiring a two-pound limitation.

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