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Labor & Employment Law Section: Summer 2017 Lawnotes LABOR AND EMPLOYMENT LAW SECTION – STATE BAR OF MICHIGAN LABOR AND EMPLOYMENT LAWNOTES Volume 27, No. 2 Summer 2017 WHAT “THE BLIND MEN AND Sharing this story is sometimes helpful in dispute resolution because it reminds us all every story has two sides—and both sides THE ELEPHANT” CAN TEACH may be plausible. When each story is plausible, both sides have risk. Most of the disputes I mediate are nuanced, subtle, and fact- US ABOUT PERSPECTIVE AT rich. The merits often turn on issues of motivation and intent. It is rare that the dispute is as straightforward as which party had the THE MEDIATION TABLE green light. In intersection collision cases where one driver did have the green light, considering perspective may not be particularly Sheldon J. Stark useful. Useful or not, determining who is right and who is wrong Mediator and Arbitrator is rarely all that relevant in any mediation proceeding. Mediation is an assisted negotiation. It is entirely voluntary. No settlement Frequently, disputes arise out of the different perspectives of will be reached unless both sides view it as in their best interest. the parties. Parties may observe the same facts but their perceptions While they may agree on a satisfactory resolution, they are rarely of what happened and why may turn on where they stood, what role going to agree on the facts. Efforts to move them toward agreement they were playing or what they were thinking at the time of the on facts is not likely to be productive. occurrence or event at the center of the controversy. Anais Nin famously said, “we see things not as they are, but as we are.” Mediation is a dispute resolution process, not a fact finding Looking at the dispute as an objective, third party neutral, mediators or truth determination process. Accordingly, mediators make may see the figure/ground change back and forth many times as he more progress and better set the stage for resolution when they listens to each share their perspective. Is the image below a focus party attention on risk more than justice; benefit versus cost; woman’s face or a saxophone player? recognition of underlying needs and interests; and options for resolution. Mediation is focused on the future. The past is relevant, of course, but discussion about what happens next is the surest path to reaching a mutually agreeable settlement. Sometimes the most productive avenue to pursue is helping each side understand the other side’s perspective. The mediator is not asking either side to necessarily agree with that perspective. It is often enough when parties better understand what might be driving the controversy. Again, understanding perspective changes the figure/ground of the dispute. In the image below do you see an older, pensive woman or a fashionable woman in a fur coat? Sitting at the mediation table listening to parties describe their side of a dispute, I’m often reminded of a book I like to read to my grandchildren, “The Blind Men and the Elephant.” There are multiple versions of the story, but in essence a group of blind individuals visit the circus to learn about elephants. The first approaches the elephant and encounters a leg. “Ah,” he says. “I know what elephants are like. They’re like tree trunks.” The second approaches and touches an ear. “Tree trunk?” he asks. “To me, an elephant is like a large piece of lettuce.” The third approaches the elephant and touches the side. “Lettuce? Tree trunk? To me, an elephant is like a large, rough wall.” Another’s first touch is the elephant’s trunk. “I don’t get what you’re saying,” he muses to the others. “To me, an elephant is like a boa Consider the following commonly occurring disputes: Was constrictor.” The last reaches the tail and concludes that an plaintiff disciplined by her employer and treated differently because elephant is like a rope. Who is right? The moral of the story, of of her gender—plaintiff’s version; or because she excessively used course, is that none of them is right about elephants—none of the office telephone for personal calls—the defendant employer’s them has grasped the big picture. Their conclusions about version? Would it help if the parties better understood the other and elephants turn entirely on their perspective and where they happened to be standing. (Continued on page 2) Page 2 LABOR AND EMPLOYMENT LAWNOTES (SUMMER 2017) WHAT “THE BLIND MEN AND CONTENTS THE ELEPHANT” CAN TEACH US What “The Blind Men And The Elephant” Can Teach Us ABOUT PERSPECTIVE AT THE About Perspective At The Mediation Table . 1 MEDIATION TABLE Benefit Suspensions Under The 2014 Multiemployer Pension Reform Act—An Update . 3 (Continued from page 1) The Rewards Of Being A Union Lawyer . 4 When The Cops Blow The Whistle: New Cases Provide the evidence in support of their perspective? Perhaps. Did mom Large Whistleblower Awards For General Counsel, appoint the sister to be her fiduciary because mom loved her more— Human Resource Directors . 6 as the fiduciary claims; or because the sister exercised undue One To Watch? . 7 influence to overcome mom’s true intent—the petitioner’s position? Would it help either side to understand what facts caused these For What It’s Worth . 9 siblings to reach such different conclusions? Perhaps. Did the vice- Michigan Whistleblowers’ Protection Act Nuances Update . 9 president of marketing spend more money on the conference in Las United States Supreme Court Update . .10 Vegas than was budgeted simply to indulge himself—the CFO’s MERC Update . .11 perspective; or were his expenditures necessary to entertain MERC News . .12 important potential customers—the marketing person’s perspective? When the facts are better known, might it make a difference in Michigan Supreme Court 2016 Decisions About Arbitration . .13 resolving their differences? Maybe. Did plaintiff experience minority oppression because his partners became greedy and wanted Michigan Supreme Court Update . .14 his shares, too—as plaintiff argues; or did plaintiff cause the Publishing Misteaks . .14 situation by bullying his partners and refusing to listen to Waiting For The Pendulum To Swing: constructive criticism—as the defense would have it? Predicting Changes Under The Trump NLRB . .15 Sixth Circuit Update . .16 A better understanding of perspective in such a dispute might Appellate Review Of MERC Cases help the parties let go of their grievances. In a non-compete case (Part I) (February 2016–January 2017) . .17 I mediated, one of the parties complained the other side was not Protecting Privacy In Employment Law Cases . .19 proceeding in good faith. “Their goal is to destroy us. We’re just a little player and nuisance to them. They don’t care about this mediation.” I reminded the company owner that the other side STATEMENT OF EDITORIAL POLICY had arrived at the mediation table with its president and 5 top lieutenants—every one of whom had flown to Michigan from out Labor and Employment Lawnotes is a quarterly journal published under the auspices of the Council of the Labor and Employment Law of state. “How much money do you think they’ve invested in this Section of the State Bar of Michigan. Views expressed in articles and day in salaries and airline tickets alone?” I asked. “They could case commentaries are those of the authors, and not necessarily those simply have sent a mid-level HR person if they had no interest in of the Council, the Section, or the State Bar. We encourage Section resolution.” The light bulb was clearly visible above his head. members and others interested in labor and employment law to submit The case resolved. articles, letters, and other material for possible publication. Stuart M. Israel, Editor While every story has two sides, we have all seen cases where John G. Adam, Associate Editor the truth lies somewhere in the middle. Like the blind men and COUNCIL DIRECTORY the elephant, sometimes neither party has it precisely right. Chair Recognizing the role of perspective in how the dispute arose can Susan Hartmus Hiser. Bingham Farms diffuse and deescalate emotions. Undoubtably, a richer Vice Chair understanding of where the other side is coming from can Gloria A. Hage . Ypsilanti motivate the parties to look to the future and stop fretting Secretary Jennifer B. Salvatore. Northville about/perseverating on the past. If we can help parties climb up Treasurer to the balcony and look down on their dispute to see the big Michelle P. Crockett . Detroit picture, it may become easier to resolve their differences. Council Term Ending: 2017 In many disputes, the figure/ground may reverse repeatedly Keith J. Brodie . Grand Rapids Mark H. Cousens . Southfield as the parties express their perspectives. Perhaps consideration Sarah Suzanne Prescott. Northville of these images at the mediation table will result in a common Heidi T. Sharp. Clinton Township understanding of how perspectives differ and result in mutually Andrey T. Tomkiw . Royal Oak agreeable resolution bringing closure to the dispute. I Anne-Marie Vercruysse Welch . Birmingham Term Ending: 2018 Adam S. Forman. Southfield Erin M. Hopper . Okemos Danielle Christina Lester. Troy James McGregor Reid, IV . Southfield Tad Tameem Roumayah . Southfield Richard William Warren, Jr.. Detroit Immediate Past Chair Brian E. Koncius . Bingham Farms LABOR AND EMPLOYMENT LAWNOTES (SUMMER 2017) Page 3 projected they will run out of money during the next 20 years and BENEFIT SUSPENSIONS will likely call on PBGC for financial assistance.”10 PBGC warned that “guaranteed benefits for the [Road Carriers’ Plan] UNDER THE 2014 retirees, and participants in other insolvent multiemployer plans, MULTIEMPLOYER PENSION will be reduced even further if steps are not taken to address the deteriorating financial condition of PBGC’s multiemployer insurance program.”11 PBGC projects its multiemployer program REFORM ACT—AN UPDATE 12 is likely to run out of money by the year 2025.
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