Carson, a human resource manager at FGH Tech, Ltd., met with an employee, Whitney, who had just received her third below average peer review. Carson suggested that Whitney consider a voluntary severance benefit in exchange for a release of all possible claims she might have. Whitney agreed to the exchange and Carson prepared an agreement and obtained the severance check from accounting. The company’s severance policy provides that an employee with Whitney’s seniority received 24 weeks of severance amounting to $21,000 in exchange for the release of claims.
Carson makes a mistake in the agreement and places 24 months instead of 24 weeks as severance pay. He sends the agreement on to payroll and they issue a check for $84,000 to Whitney along with the agreement. The check and agreement are mailed to Whitney, even though the agreement has not been signed by either Carson’s boss or any other company representative.
Carson realizes his mistake by the end of the next day and phones Whitney to tell her to return the check and he will issue the correct amount right away. He also has payroll stop payment on the check. Whitney hears the message from Carson but has already taken the check to her bank for deposit and had the agreement notarized by the bank notary. The check is later returned to Whitney based on the stop payment order.
The severance agreement has a dispute resolution clause that asks for voluntary negotiation, mediation, and as a last resort arbitration by a Mediators Without Borders professional. Whitney does not want to take part in mediation as she believes someone else should weigh the case and render the award. The company agrees to try arbitration using the Mediators Without Borders Rules for Employment Disputes and counters Whitney’s claim of $84,000 by dropping any severance and simply terminating her employment.
You have received the interviewers report and note the following items of request for discovery:
1. The company intends to call eight witnesses.
2. Whitney intends to call three witnesses.
3. Whitney’s attorney believes the arbitration should only take one day.
4. The company attorneys believe the arbitration should take at least four days with two dedicated to the discovery
In this module, you will continue to explore ways to successfully direct Stages 2 and 3 of the InAccord Arbitration model. In your discussions with other students, you will learn how to rule on special requests made during witness testimony and how to streamline expert witness testimony. You will prepare a reaction paper that focuses on rulings you would likely make in the Severance Case from last module.
By the end of this module, you will be able to:
• Provide techniques for maintaining control of the hearing environment.
• Clarify the use of questioning in Stages 2 and 3.
• Clarify the use of rulings in Stages 2 and 3.
Required Reading and Assignments During this module you will:
Read:
• Required:
• Goodman, A. H. (2004). Basic skills for the new arbitrator (2nd ed.).
Rockville, MD: Solomon Publications.
• Witness Testimony and Closing Arguments
• Mediators Without Borders. (n.d.). Phase Two Stage 3 Survey. Optional Discussion:
• M5D: Ruling on a Request for Postponement
Required Paper:
• M5A1: Reaction Paper: Severance Case Rulings
Severance pay dispute PDF attached
Module Notes: Ruling on Special Requests
Here is a list of special requests that can be made, either by the arbitrator or the disputant parties, during the arbitration process.
Request for a document held by the other party for submission into evidence You are the ultimate judge of whether this document is necessary. It is helpful to ask the requesting party to explain why this document is material and relevant.
Clarification of a legal issue pertinent to the case
If you require further clarification of a legal issue, you should not do independent research. Instead, you should ask counsel for each side and/or both parties to explain the case or file a reply in brief.
Investigations outside the hearing room
It may be necessary to make an inspection or investigation in connection with the arbitration and ask the interviewer to notify the parties of this need. Any party who so desires may be present during the inspection or investigation; however, if not all parties attend, the arbitrator should create an oral or written report to the parties and allow them to comment. If not all parties are present, you must be very careful to avoid any ex parte communication with the parties. All discussion about the investigation must take place within the hearing itself and not at the investigation site.
Interim measures
On occasion, a party may ask for interim relief to protect subject matter that is material to the case. You are able to take any interim measures you deem necessary with respect to the dispute, including measures for the conservation of property, which is entered into the record.
Postponements
You must accept postponements when the parties agree to them, and you have the authority to postpone any hearing, either on your own initiative or for good cause shown at a party’s request. The requesting party must first communicate any request for postponement to the other party. If the other party refuses the postponement, you must rule on the request. It is advisable for you to arrange a conference call with all the parties where they will present their rationale for requesting or refusing a postponement. Occasionally, you will encounter a party that abuses postponement to delay a ruling. Consider the following
• Is this the party’s first request?
• If the postponement is due to the availability of a witness or document, can the person or document be presented later or is this vital to the case?
• Can another witness provide the same testimony as the unavailable witness?
• Will any party suffer extreme prejudice by granting or denying the postponement?
• Will an “offer of proof” resolve the problem? An offer of proof is the phrase used to describe the presentation by the party of why the evidence needed is material to the case.
If you find a party is abusing the postponement privilege, you can set the date for a peremptory hearing, which is a hearing that cannot be changed
Severance_pay_dispute_part_I INACCORD_Arbitration_Text_2017 Module_Five_Overview_ET Phase_Two_Stage_3_Survey Basic_skills_book
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