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E-Mail Newsletter
December 21, 2015 Winter 2015
Volume 1, Number 2
WORKPLACE REPPORTER
Vol 1 No 4
Workplace Section Leaders Co-Chairs Art Finkle [email protected] 215-860-3991
Katrina Nobles [email protected]
Angela Dash
330.325.6254 Past Chair Sarah Espinosa [email protected] 240-687-6188 Practice Leaders Conflict Coaching
Patty Stiles [email protected] 847-220-3011
Organizational Conflict Management (QCM) Dick Fincher [email protected] 480-784-7034 Ombuds Susan Park [email protected] Organization Sector Alison M. Sulentic, Esq. [email protected]
Diversity
Theresa Gray
Federal Sector Todd Dickey [email protected] 202-258-5124
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Lorraine Segal [email protected]
707 236 8079
Congregational Dick Fincher [email protected] 480-784-7034
Facilitation Rita Callahan [email protected] 718-425-6036
Table of Contents Page
Workplace Section Leaders 3
2015 Annual Conference Highlights 7
News from the Courts 9
Best Blog Posts 13
Recent Videos 16
Books 16
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Workplace Section Leaders
Workplace Section (WPS) co-chairs, Art Finkle (2013- September 2016)
and Katrina Nobles (2014- September 2017) look forward to continuing to serve
as section leaders during the upcoming year. WPS co-chair Sarah Miller
Espinosa stepped down as co-chair after being appointed to serve as a member
of the ACR Board of Directors. Espinosa will serve as the WPS practice lead for
arbitration.
Angela Dash, a longstanding member of ACR and charter board member
of the ACR Georgia chapter, will join Art and Katrina as co-chair. Dash provides
coaching, mediation, facilitation, and training services in her private practice as
well as in her current role as Ombuds at Northeast Ohio Medical University.
Prior to her current appointment, Dash spent 14 years in leadership roles in
Georgia’s courts, including managing one of Georgia’s largest court based ADR
programs. She is currently completing her Ph.D. in conflict analysis and
resolution at Nova Southeastern University.
Angela, the principal trainer and consultant of The Pace Institute uses her knowledge of theory and practice to provide facilitation and mediation training as well as coaching services. She also creates customized trainings for client organizations. Angela is the Ombuds at Northeast Ohio Medical University.
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Prior to her appointment, Dash spent over fourteen years in various leadership positions in Georgia’s court system.
Dash holds several professional distinctions (Senior Professional in Human Resources (SPHR®) and Society for Human Resources Management - Senior Certified Professional (SHRM-SCP).
Dash is a doctoral candidate at Nova Southeastern University, pursuing a Ph.D. in Conflict Analysis and Resolution.
Theresa Gray (2015 – September 2018) was recently elected to serve as
the WPS Diversity & Equity Point Person. Gray has been volunteering for ACR
for many years and mediating for over 20 years. Her current focus is workplace
mediation. She has taught classes in mediation, negotiations, and conflict
resolution. Gray formerly served on the Southern California Mediation
Association Board of Directors and the Orange County Mediation Conference
Committee.
Volunteer practice leads for 2015-2016 include: Patti Stiles and Lorraine
Segal – Conflict Coaching; Dick Fincher – Congregational; Rita Callahan –
Facilitation; Todd Dickey – Federal Sector; Barbara Beatty – Ombuds; Sarah
Espinosa – Arbitration; and Katrina Nobles – Organizational Conflict
Management and Systems Design.
WPS leaders volunteer their time in pursuit of strengthening ACR by
providing meaningful learning and networking opportunities for WPS members,
including by: coordinating learning opportunities (teleseminars and sessions at
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the annual conference) and sharing information on the latest workplace conflict
resolution developments through its newsletter and webpage
(www.acrworkplace.weebly.net).
WPS is currently looking for volunteers to serve as co-practice lead for
conflict coaching and practice lead for workplace mediation. Additionally, WPS
needs volunteers who are interested in serving on a workgroup to explore the
opportunity of developing a way for WPS members to connect with one another
in mentor/mentee relationships, Please contact Katrina Nobles at
[email protected] if you are interested in serving in one of these roles.
2015 Conference in Reno
The 2015 ACR Conference in Reno, Nevada, included a variety of sessions
of interest for Workplace Section members, including two sessions sponsored by
the WPS, “Cross Cultural Conflict: A Pragmatic Approach to Issues in the
Workplace” and, in collaboration with the International Ombudsman Association,
“Cross-Fertilization – Organizational Ombudsman & Other Conflict Management
Practitioners – Expanding Your Toolboxes.” At the Workplace Section meeting,
35 members gathered to hear a summary of WPS accomplishments in the past
year. WPS hosted five general workplace teleseminars and the conflict coaching
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practice area hosted nine teleseminars, for a total of 14 teleseminar learning
opportunities during the past year. WPS published three e-newsletters: Winter
2014; Summer 2015; and Fall 2015. Past newsletters are available at
www.acrworkplace.weebly.com.
The 2016 ACR Workplace Conference will be held in Baltimore, Maryland.
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2015 ANNUAL CONFERENCE HIGHLIGHTS
ACR Interview Featuring Warren Baker on #Reno2015ACR Commercial-Focused Programming
Related Conference Session:
Family (Business) Feuds: How Mediators can Help Family-Owned Businesses Navigate Transitions and
Resolve Conflict to Put the Success in Family Business Succession
Friday, Oct. 9th | 1:30 pm - 3:00 pm | Emerald A
ACR Interview Featuring Bernie Mayer on "The Conflict Paradox"
Speakers and their Topics
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Association for Conflict Resolution Update
ACR Staff Cheryl L. Jamison, J.D., Executive Director 1639 Bradley Park Dr., Suite 500-142, Columbus, GA 31904 (202) 780-5999 [email protected]
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News from the Courts
This is a quarterly update on recent judicial decisions of interest to the ACR
Workplace community. If you come across a case which you think would be of
interest to our readers, please e-mail Alison Sulentic, Esq. at
News from the Courthouse
This is a quarterly update on recent judicial decisions of interest to the ACR
Workplace community. If you come across a case which you think would be of
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interest to our readers, please e-mail Alison Sulentic at
When Can a Third Party Invoke an Arbitration Clause in a Contract He
Didn’t Sign? Parker v. Schlumberger Technology Corporation, 2015 Tex. App.
LEXIS 9761 (Tex. App. 1st [Houston] 2015).
Ricky Parker, on behalf of himself and as the sole stockholder of Parker Energy
Services, entered into an Asset Purchase Agreement with a limited liability
company that subsequently merged with Schlumberger Technology Corporation
(“STC”).
The Asset Purchase Agreement provided that, as a condition precedent of closing,
all key employees of Parker Energy Services would enter into certain standard
employment forms. These forms included a covenant not to compete, a
confidentiality agreement and a non-solicitation clause, each of which would
continue in effect for one year following the individual’s termination of employment.
Parker, along with key employee James Myers, agreed to these conditions.
Although Myers was not a signatory to the Asset Purchase Agreement, its terms
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also required Myers to enter into a retention bonus contract containing similar
provisions.
Unlike the employment forms and the retention bonus contract, the Asset
Purchase Agreement included a binding arbitration clause, with an exception for
injunctive relief in the event that any party violated its non-compete or non-
solicitation provisions.
Parker and Myers retired from STC in 2013 and 2014 respectively. Before the
expiration of his non-compete and non-solicitation obligations, Parker founded a
new company that provided the same services as STC and began to solicit STC‘s
customers and employees. Although Myers remained an employee of STC for
almost a year after Parker’s retirement, he began to assist Parker with his new
business by procuring equipment and arranging for the new company to enter into
service agreements with STC’s customers. When Myers retired from STC, he,
along with 11 other former STC employees, joined Parker’s new company.
STC sued Parker and Myers for breach of contract, breach of fiduciary duty and
tortious interference with existing and prospective business relationships. In a
demand letter, STC sought specific performance of the terms of the Asset
Purchase Agreement. Parker and Myers initiated an arbitration proceeding and
filed a motion in trial court to compel arbitration of all of STC’s claims. The trial
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court denied the motion and granted STC’s request for a temporary injunction
prohibiting Parker and Myers from competing with STC or soliciting its employees.
Parker subsequently settled with STC. Myers, however, did not settle and sought
to enforce the arbitration clause. STC continued to maintain that Myers, who was
not a party to the Asset Purchase Agreement, was not entitled to do so.
The First Texas Court of Appeals noted that the existence of an enforceable
arbitration clause is a legal question to be resolved in accordance with ordinary
contract law. As a general matter, doubts as to the scope of an agreement
must be resolved in favor of arbitration. The Court held that the fact that the
Asset Purchase Agreement required Myers to take certain actions was
sufficient grounds for Myers to invoke the arbitration clause, despite the fact
that he was only a signatory to agreements that were ancillary to the
agreement itself. The Court pointed out that STC benefited from Myers’
execution of the ancillary employment agreements, which was a necessary
condition for the consummation of the Asset Purchase Agreement. As a
result, the Court found that Myers was entitled to compel arbitration on grounds of
equitable estoppel and incorporation by reference.
The Takeaway - This case is significant in its recognition of a third party to enforce
an arbitration clause in an agreement to which he is not a party. Although the
circumstances are somewhat unique, it is worth noting that an arbitration clause
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may have an impact on the parties’ relationships with persons who did not sign the
agreement itself. If the arbitration clause is part of an agreement that is intertwined
with arrangements with third parties, it may be difficult to argue that these
arrangements are not subject to the same dispute resolutions as would apply to
the principal transaction.
Supreme Court Hears Pregnancy Discrimination Case
List of Employment Laws
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Court reasons that unreasonably withdrawing a reasonable accommodation is reason
for employee to win ADA suit
Eric B. Meyer
Let's say that you have an employee whom the Americans with Disabilities Act would consider disabled and to whom you have afforded a reasonable accommodation for a long time.
Maybe it's a few years of light duty to accommodate your employee's bad back. Maybe it's keeping your employee with medically-documented sleeping issues off of the graveyard shift.
Or maybe, like in this case, it's allowing an employee who takes morning meds for ADD and bipolar disorder to arrive to work a late, so the meds can kick in. Indeed, for 2 1/2 years, the employee in this particular situation was accommodated with modified start time.
But following a change in management at the company, without explanation, the employer unilaterally withdrew the accommodation. Just like that.
So, the employee brought a failure-to-accommodate claim under the ADA.
Now, you may be thinking, can an employer really do that? Can it just stop accommodating an ADA-disabled employee without some sort of justification or demonstrating undue hardship?
Funny, that's what a federal judge was thinking when he not only denied the employer's motion for summary judgment, but also granted the plaintiff's cross motion:
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"Crane had already made a reasonable accommodation to enable Isbell to do her job -- for some 2-1/2 years it had accommodated the later-starting work schedule that she had requested to meet her special needs for the performance of her job responsibilities. No real reason has been proffered by Crane as to why a new management broom, who (not incidentally) had no prior knowledge of Isbell's special arrangement or of the needs that had prompted it, should be entitled to start by subjecting her to a one-size-fits-all timing sweep. Indeed, as already indicated in the preceding paragraph, such uniformity of treatment is precisely what the underlying purpose of the ADA rejects."
* * *
Because the undisputed facts, even when construed in Crane's favor, demonstrate that Isbell could and did adequately perform her essential duties for over two years with the reasonable accommodation of a 10 a.m. start time, Crane's sudden replacement of that start time with a more onerous schedule without considering her known disability plainly constituted an unreasonable failure to continue to accommodate that disability under the ADA.
Does this mean that employers who offer long-term accommodations are stuck providing them for life? No. One option is for the employer and employee to re-engage in a good-faith interactive dialogue to determine what other accommodation(s) may allow the employee to perform the essential functions of her job.
But, to discontinue an accommodation altogether, an employer will have to demonstrate that the existing accommodation has become an undue hardship.
http://www.theemployerhandbook.com/2014/03/employer-withdraw-reasonable-accommodation.html
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Mediation Blogs: Best Blog Posts of The Month
We Have to Talk: A Step-By-Step Checklist for Difficult Conversations -
Judy Ringer
Working with people who don't want to negotiate – Roger Fisher
Roger Fisher explains that when one party doesn't want to negotiate, talk
to others around them to find out their motivations, interests, concerns,
and worries. To have an intermediary to be the back-and-forth at first can
provide a foundation for building up to a negotiation
Working with people who don't want to negotiate – Roger Fisher
Roger Fisher explains that when one party doesn't want to negotiate, talk
to others around them to find out their motivations, interests, concerns,
and worries. To have an intermediary to be the back-and-forth at first can
provide a foundation for building up to a negotiation
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Resolving emotional, highly charged employment issues with mediation
New York Law Journal
Whether you represent the employee or former employer (or even the new employer) in a
case involving allegations of theft of trade secrets or breaches of noncompetition, non-
solicitation, anti-poaching, and/or confidentiality covenants, mediation is an attractive option
that should be considered as a valuable tool to help resolve a case including at its earliest
stages. READ MORE
A Conversation with Antonio Piazza
Three interviews with famous mediator Antonio Piazza by the American
Bar Association Litigation Section from 2011. Mr. Piazza pioneered the
development of mediated negotiations as the preferred alternative to
protracted conflict in complex civil disputes, having successfully
mediated the resolution of four thousand cases since 1981.
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When to Make the First Offer in Negotiation - PON - Program on Negotiation at
Harvard Law School.
Negotiators are often told not to make the first offer. Because they will be
negotiating against themselves. However, strategically, some fist offers should
be initiated. Under what circumstances?
The "Little Things" That Go On During A Mediation (1/24/14) Jeff Thompson The brain “sees” objects that you don’t perceive. This article teaches you to consider the impact of all of the "Little Things" that go on during a mediation
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Recent Videos about Mediation: YouTube and Other Sources
Costs of Workplace Conflict
Mediation Openers
Eckert Tolle on Mediation
Books
The Conflict Pivot: Turning Conflict into Peace of Mind
Tammy Lenski
If you’ve been told not to take conflict personally, you only have half the
story. Conflict in business and personal relationships can be deeply personal.
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The key to your freedom is knowing why certain conflicts get their hooks into
you, and what you can do to liberate yourself.
