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Don't Wait: Mediate

On Friday, July 29, 2016, I had the privilege of speaking at Princeton University as part of the New Jersey Association of Professional Mediators' Conflict Resolution in the Workplace Seminar. My fellow panelists included distinguished mediators Robert Margulies, Patrick Westerkamp, Maureen Binetti, Nick Stevens, Elliot Baumgart, and my pal, Lucille Alfano. Employee advocate Stephen Hunter and Rutgers University School of Management and Labor Relations Professor Bill Dwyer rounded out the panel.

The bottom line lesson of the event was that, with the help of a trained mediator, parties can resolve conflicts in the workplace by achieving results that they could not obtain through the adversarial process. For example, whereas a judge may only be able to fashion a monetary remedy that leaves one or both parties with lingering resentments, a mediation can result in a creative solution that could help solve the issue at hand, reduce acrimony, and hopefully circumvent future workplace disputes.

My contribution was to discuss the subject of Employment Practices Liability Insurance ("EPLI"). As the mediators on the panel attested to, EPLI can play a major role in resolving (or not resolving) workplace disputes. Because more and more employers are opting for coverage either through private EPLI policies, or, in the public sector, JIFs (Joint Insurance Funds), employee representatives and mediators better get used to the shadowy third party to many meditations - the insurance adjuster.

I hope that employers took away from my presentation the following: whether your labor counsel is on the insurance panel or not, be careful to make sure that your EPLI appointed attorney is aware of and pays close attention to workplace issues. Once a case is settled, the EPLI attorney may move on to his or her next case. Meanwhile, the employer and employees must live with the settlement. One little known fact about EPLI is that many if not most policies provide that the insured can be cut off from coverage if the insurer proposes a settlement, which the insured employer refuses to put on the table.

Plosia Cohen LLC encourages all employers to keep their EPLI attorney in touch with management, in-house and outside labor counsel, and other decision makers to make sure that the result reached at mediation is not only satisfactory to the insurance company and the claimant, but to the insured as well.

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