To the Editor:

Corrections or additions?

This column was prepared for the June 6, 2001 edition of U.S. 1

Newspaper. All rights reserved.

Between the Lines

To the Editor:

As president of the New Jersey Association of Professional Mediators

(NJAPM) and a trial lawyer, I read with genuine interest Kathleen

McGinn Spring’s on-target review of recent legal developments in

employment arbitration. Without question, the U.S. Supreme Court has

given a green light to mandatory arbitration clauses covering most, if

not all, employment disputes. Given the vagaries of the U.S. economy

and management’s general discomfort with — bordering on hostility

towards — the unpredictability of court cases and jury verdicts, we

can expect a lot more activity in the arbitration arena.

And how unfortunate that will prove to be, unless managers and

employees first stop and consider working out all such workplace

disputes with the aid of a trained professional mediator. Private

sector mediation of workplace disputes is purely voluntary, private,

inexpensive, non-binding, and fast. Most importantly, it works, and it

works better than any other process around.

Almost all workplace disputes involve the push-and-pull of emotional

factors, dressed up to look like money and performance issues. While

workplace disputes occur in all shapes and sizes, as mediators and

lawyers who promote mediation, we often deal with long-term employment

situations, where displacement comes with a lot of upset.

A workplace termination is akin to the sudden break-up of a marriage.

In these settings, it is critically important to get the parties

talking about their underlying interests. Employees often look for a

sign of management’s respect, a dignified exit with some assurance of

financial support as they seek other employment. Managers often look

for a peaceful exit, with no disruption of ongoing employment

relationships, and a way to cut losses for reasonable dollars.

While employment lawyers and HR personnel are sometimes able to work

these matters out on their own, I have seen far too many examples of

broken negotiations, disappointed employees, and angry managers. These

are the cases that head for the courthouse or, increasingly, the

arbitrator’s office.

So, you may ask, what’s wrong with that picture? Since both public

judges and private arbitrators have final, binding, decisional

authority, once parties enter either of those processes, both sides

are buying themselves a "win-lose" outcome, when what they really want

is a "win-win". An unhappy party to a litigated or arbitrated outcome,

whether manager or employee, will continue to make noise, consciously

or unconsciously seek to undermine the outcome, or fail to heal and

move on as quickly as they might if the decision were mutually

reached, with the help of a skilled facilitator.

While I applaud U.S. 1 for highlighting the arbitration arena, I

strongly urge your readers in need of workplace dispute resolution to

consider mediation as a first option, and hire mediation conversant

lawyers from the very start. If matters end up in litigation or

arbitration, the parties have lost nothing. On the other hand, if the

parties start out in litigation or arbitration, they are not only in

for a difficult, expensive, and time consuming ride, but they may find

it impossible to reach common ground in the later innings.

Hanan M. Isaacs, A.P.M., President

New Jersey Association of Professional Mediators

Isaacs moderates a panel, "How We Will Make a Living at ADR" at a

New Jersey Institute for Continuing Legal Education conference on

Friday, June 15, at 8:30 a.m. at the Woodbridge Sheraton in Iselin.

Cost: $210. Call 732-214-8500.

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To the Editor:

The following letter was sent to Executive Director James C. Amon and

the commissioners of the Delaware and Raritan Canal Commission: