Lou Chang is an arbitrator, mediator and fact-finder in employment and labor-management matters. He is a member of the National Academy of Arbitrators. He arbitrates, mediates and serves by direct party appointments and also serves as an arbitrator or mediator on the panels of the Federal Mediation and Conciliation Service, Hawaii Labor Relations Board, American Arbitration Association, Dispute Prevention and Resolution, Inc., and various Court, collective bargaining and private contract panels.
EMPLOYMENT/LABOR RELATIONS EXPERIENCE:
Lou Chang has been an arbitrator since 1978 and a mediator since 1984. Lou Chang also serves as an independent investigator, neutral fact finder and evaluator of intra and inter-organizational employment complaints and disputes. His dispute resolution services are provided in Hawaii, Guam, the Pacific and the Western United States (California, Washington, Oregon, Nevada, Utah, Colorado, Arizona, Wyoming).
He has arbitrated and mediated labor (rights and interest) and employment matters since the 1980’s as a panel arbitrator under various collective bargaining agreements and by private appointments.
Airlines, Agriculture, Beverage, Building Products, Carpenters, Clerical, Coal Mining, Construction, Education, Electrical, Fire Fighters, Food (Manufacturing/Processing/Service), Government Employees, Health Care, Hotels/Motels/Casinos/Resorts, Hospitals/Nursing Home, Iron Workers, Longshore, Maritime, Service workers, Non-Profits, Operating Engineers, Organizations, Packaging, Gas/Petroleum/Petrochemicals, Plumbing, Police, Prison Guard, Border Patrol, Pulp and Paper, Teachers, Telephone, Restaurants, Retail Stores, Transportation, Trucking and Storage, University, Utilities and Warehousing.
Affirmative action, Absenteeism, Arbitrability, Bargaining Unit Work, Bargaining Unit Coverage, Benefits, Conduct (off-duty/personal), Demotion, Discipline (non-discharge), Discipline (discharge), Discrimination (Age/Disability/Race/ Sex/National Origin), Drug/Alcohol offenses, Fringe Benefits (Bonus/Holidays/Leave/Vacation), Grievance Mediation, Health/Hospitalization, Hiring practices, Impact Bargaining, Job Performance, Job Posting/Bidding, Layoffs/Bumping/Recall, Management Rights, Past Practices, Pension and Welfare Plans, Promotion, Safety/Health Conditions, Seniority, Sexual Harassment, Strikes, Lockouts, work Stoppages, Slowdowns, Subcontracting/Contracting Out, Tenure/Reappointment, Tips, Trust Funds, Wages (Holiday Pay/Incentive Pay/Job Classification and Rates/Overtime Pay/Severance Pay), Work Hours/Schedule/Assignments, Working Conditions/Work Orders, Violence or Threats, Retaliation, Whistle Blower, Expedited Arbitration and Employment.
Employment & Workplace Disputes
A successful organization or institution is often a complex combination of people, personalities, cultures and process. Disagreements within and between individuals and organizations are inevitable. If not promptly and efficiently managed, issues and disagreements become disputes that can damage the creative and productive energy of an organization. Most disputes can be managed or resolved through internal complaint, review, investigation and negotiation.
Sometimes, internal supervisory, managerial or institutional sensitivities or legal considerations make it beneficial to consider:
· Independent investigation or neutral fact-finding.
Employers have a legal duty, for example, to take prompt and effective remedial action when the employer has knowledge of alleged sexual harassment. In such instance, an immediate investigation should be conducted as soon as possible. Employers may consider having the investigation performed by an independent, neutral and unbiased person. The findings in the report of the independent investigator may come within the protection of an attorney-client or work product privilege if the employer engages legal counsel conduct or coordinate the investigation.
Mediation is a voluntary, non-binding process using an impartial and neutral third-party to assist parties to reach mutual agreement and resolution of their disputes. Mediation is proving to be highly effective in achieving prompt and productive solutions to workplace disputes.
Why should you consider mediating a pending dispute or lawsuit?
1. Parties maintain decision-making control. Agreements are made in mediation only if the parties find the agreement acceptable. The mediator assists the parties in their consideration of options and possibilities the parties control the outcome.
2. Effective. Across the country, mediation programs commonly report that 75% to 80% of all business, civil and commercial cases that go to mediation are resolved through mediation.
3. Quick. Mediations usually can be arranged in days or weeks.
4. Inexpensive especially when compared to cost of litigation or arbitration.
5. Flexible and allows for
solutions. Parties can address their specific interests and particular needs and tailor agreements to fit their circumstances.
6. Private, confidential and can help protect relationships from damage caused by an adversarial litigation process.
7. Safe. Parties have complete
decision making control. No one can compel you to agree to any agreement unless you find the agreement acceptable.
8. Positive. Mediation focuses on the future, improves communication and seeks solutions in a collaborative spirit. Participants in mediation report greater satisfaction with the mediation process.
9. Durable. Solutions reached by mutual agreement tend to be more durable and lasting than decisions imposed by a court or arbitrator.
10. Accessible. Available quickly, without the formality, procedure and rules of the judicial system.
organizational and employment disputes, typically is quicker and far less expensive than arbitrating or litigating such matters. Organizational and employment disputes distract and direct valuable
time, energy and resources away from positive and productive purposes. Valuable relationships and reputations are jeopardized. In a business community and in challenging
economic times, such disputes can be particularly destructive. Mediation has proven to be a very valuable and effective means of addressing, managing and resolving major disputes, allowing the principal parties to maintain control over the resolution of their disputes. Mediation, when timely engaged and sensitively performed by trained and experienced mediators empowers parties to achieve maximum mutually beneficial resolutions that meet their real needs and interests.
During mediation, parties are encouraged to provide and exchange critical information so that all parties can fully, quickly and adequately assess the situation so that sound and sensible business decisions can be made. If this can be achieved before avoidable and unnecessary litigation expenses are expended, parties are better able to use their resources more productively and to reach reasonable and realistic agreements.
What Does a Mediator Do?
In mediation, parties engage and use an impartial, non-aligned third-party to facilitate negotiations, identify creative options and assist parties to find agreeable and acceptable resolutions of their dispute.
guides the discussions and acts as a catalyst for productive communications during the process of negotiations, helping parties identify issues, explore possible solutions and
assess how various options meet their needs and interests.
A mediator brings parties together, encourages productive communications, facilitates and accelerates negotiations, identifies options for resolution and helps parties reach mutually agreeable solutions and settlements. Sometimes, a mediator must defuse hostilities, and identify and overcome impasses in negotiations in order to keep discussions going. Often, the mediator serves as a mirror of reality and helps parties to assess how various options for settlement may meet their needs and satisfy their interests.
Each conflict is unique. A trained mediator must be flexible, creative and calm in adapting and adjusting to the needs and dynamics of each conflict and situation so that the parties can have a productive and successful mediation.
What kinds of cases are suitable for mediation?
Most organizational and employment matters can readily be resolved through mediation. Thus, a broad range of everyday conflicts and disputes are suitable for mediation. Conflicts and cases involving contract rights, employment status, staff conflicts, reorganizations, terminations, separations, harassment, discrimination, performance, negligence, personal injury, employment discharge, discipline and discrimination are increasingly being resolved through mediation.
What should you look for and how do you find and select a qualified mediator?
1. Determine the qualifications and experience of the mediator that you believe will be effective and suitable for your case and situation. Consider what experience, knowledge, training, technical, industry and/or legal background may be desirable. Select an individual who can handle the angry or emotionally distraught participant.
2. Finding a competent mediator with the right mix of skills, training, education, experience and interpersonal skills depends on the context and needs of your particular dispute. Look for a mediator with proper training. Ask prospective mediators about their specific mediation training experience. See if the prospective mediator seeks continuing education and skills training and is a member of dispute resolution professional associations.
3. Review your prospective mediator’s resume and written qualifications.
4. Ask for references and determine what other people who have experience with the prospective mediator have to say. You can check reputable organizations who maintain lists of experienced mediators.
5. See www.courts.state.hi.us/cadr for an excellent Guide to Selecting a Mediator.
Are there different types or styles of mediation?
Yes, there are different styles of mediation. Parties should discuss and make clear with the mediator their expectations and understanding as to the type or style of mediation that is desired.
The most common styles are:
1. Facilitative Mediation.
The goal of facilitative mediation is to facilitate negotiations and communications between parties and to guide the parties so that they may reach amicable and mutual solutions to their disputes.
2. Evaluative Mediation.
In evaluative mediation, the mediator uses his/her experience, education, training and knowledge and provides the parties with an assessment and oftentimes a recommendation as to an appropriate resolution.
3. “Muscle” Mediation.
In “muscle” mediation, the mediator uses his/her stature, position and experience to persuade, cajole, recommend and urge parties to resolve their disputes by accepting a proposed or recommended settlement proposal.
4. Transformative Mediation.
In transformative mediation, the emphasis is to restore, renew, strengthen and “transform” the relationship of parties who have continuing relationships so that the parties can themselves deal with their disputes and issues with an improved communication ability and understanding of each other.
TIPS FOR ADVOCATES AND ATTORNEYS IN MEDIATION
The greatest advantage of mediation is the flexibility of the process to adapt to the special facts and needs of the parties. Parties resolve their disputes in a private, confidential and informal manner with direct involvement of the disputing parties.
In representing your client in a mediation, keep these points in mind:
* Work early with your mediator. Educate your mediator. Arm the
mediator with the necessary information that help your mediator be more effective and productive. Discuss whether all potential and necessary parties have been identified and are participating.
Assess whether the mediator can assist in accelerating discovery and exchange of critical and pertinent information. Discuss any special concerns, needs and sensitivities that may exist in the case.
Enlist the mediator’s help to get needed and helpful information that will allow you and your client to make a good business decision. Discuss any specific problems you may have with opposing
parties, your adjuster or client. Determine if identification, review and tenders have been made for all potentially applicable policies of insurance and/or surety bonds. Are the parties ready to
settle? Are the insurers adequately informed? Discuss your preferences for a productive mediation process, such as having joint or separate conferences, party opening statements and offering opinions
and evaluations. Clarify your expectations and needs for maintaining confidentiality of strategic information.
* Make sure that the proper decision-makers are actively involved. Party representatives should have realistic, full and fair decision-making authority. Ideally the persons with ultimate decision-making authority should be actively involved in the mediation. When that is not possible, arrangements should be made and confirmed for reasonable and prompt access to such person(s) with ultimate decision-making authority.
* Know your client’s goals and needs. In addition to an assessment of your client’s legal claims and rights,
identify and be clear of your client’s needs and interests. Mediation presents opportunities to obtain relationship and future business benefits and results that may not be available through legal procedures
* Know your case. Be prepared to give a brief and succinct statement of the critical facts and claims. A mediation session can be a very valuable opportunity to present a summation of your case to the mediator and the other party. Unless your case is a simple one, prepare a concise and focused pre-mediation submission to the mediator to educate and arm the mediator with the critical facts, document excerpts and issues involved.
* Prepare your client. Educate your client about what might be expected from the mediation process. Be clear about your client’s real interests and needs and how they relate or differ from their legal positions and potential outcomes in a contested litigation or arbitration. Be personable and professional. Avoid actions, ultimatums, statements or emotionally hurtful words that may jeopardize the trust and good will of the parties and advocates necessary and conducive to productive negotiations.
* Plan your presentation. Set a firm but positive tone for the negotiations. You can demonstrate the strength of your claims while maintaining commitment to reaching a prompt, practical and productive resolution. Consciously decide whether your client/representative can be an articulate, effective and active participant in the mediation. Consider who will be the most effective representative participating on behalf of your client. Consider whether your client/representative should make a direct presentation of some or all of an opening statement to the other party(ies). Identify whether there are special, real world business or personal relationships, personalities, procedural problems or other considerations that may impact the negotiations. Consider the emotional and relationship aspects of the situation. Would a timely and meaningful apology or a demonstration of sincere empathy be important to defuse anger or hurt felt by another party? Is it important that the other party have an opportunity to vent and express concerns directly to a key party representative?
* Be creative and open to possibilities. Mediation allows for “win-win” resolutions. You and your client should be prepared to listen and look for all possible options and packages of possible solutions. Understanding the stated and unstated needs, hopes and dreams of your client and those the other party(ies) can help to fashion resolutions tailored to meet yours and their special needs and interests. Many times, solutions are not the ones thought of prior to mediation.
Many things are possible in mediation that may not be available in litigation or arbitration. Creative options can include:
1. Validation and recognition of dignity, self-respect needs such as a period of consultancy with the company
2. Money can be paid over time and/or annuity
3. Structure payments as general damages where possible
4. Confidentiality or “no talk stink” agreements
5. Extended periods of benefits coverage
6. If self-insured, medical insurance coverage or pay for some medical care received and/or anticipated
7. A factually accurate recommendation letter
8. A commendation letter for a project done well or for any aspect of job performance
9. Help in getting another job, which could be outplacement services or using your, or your company's, own contacts
10. Training or retraining opportunities
12. Sensitivity training
13. If appropriate, an increased workers comp settlement but get your workers comp attorneys involved
14. Agree to buy back company stock
15. Alter date of termination to allow for vesting of benefits or exercise of options or, alternatively, extend dates or amend conditions for vesting, etc.
16. Make a charitable contribution to the charity of plaintiff's choice in honor of the plaintiff
17. Establish a scholarship in the plaintiff's name
* Take advantage of the
flexibility of the process. The mediation process can be adapted to suit the needs and circumstances of your case. Determine if review and presentation of key information, testimony,
deposition exerpts or even expert opinions will be helpful to develop focus on the critical issues and
establish the strength of your case. Parties do not need to agree on the facts to settle. The key is that parties appreciate the risks and benefits of various settlement options and how they meet their particular needs and interests.
* Think of all possible options. Have a thorough understanding of the needs and interests of your client and of the other parties involved. Look for options that will satisfy the needs and interests of your client and the other parties. Mediations can lead to flexible and creative resolutions. Identify multiple options that might be the basis for a mutually negotiated resolution. The more options and components of options that can be identified, the more likely a resolution will be reached that is acceptable to all parties.
* Identify and understand the strengths and weaknesses of your case and that of the other party(ies). Understand and determine whether the perceptions and motivations of the other party(ies) is driving, helping or hindering the negotiations. Discuss this fully with your client and the mediator. Identify and understand whether missing information, misperceptions and other barriers to settlement and the factors (factual, legal, economic, psychological, personality, relational, procedural) are driving the controversy or blocking progress in the negotiations. Enlist the assistance of the mediator to obtain or arrange production of critical factual information, correct misperceptions and to help parties recognize and remove such barriers. Mediators can help to provide parties with a meaningful reality check.
* Mediation is a dynamic process. Negotiate with the right persons. Make sure that all necessary parties are participating meaningfully in the mediation, decision makers should have full authority and flexibility to agree to solutions and packages proposed.
* Document immediately. When an agreement is reached, document it immediately before leaving the mediation. Be prepared to and insist that an enforceable agreement or memorandum of agreement is prepared and signed. Consider bringing with you a draft or flash drive copy of a proposed settlement agreement. Share a copy with the other party and ask if they have other desired provisions At the minimum, have an enforceable agreement approved and initialed by all parties before concluding the mediation. Include a statement even in an “outline agreement” that the intent and understanding of the parties is that the agreement is enforceable. Consider incorporating a dispute resolution or fast track arbitration mechanism to resolve disagreements over “formal” settlement documents.
* Keep the mediator’s role and function distinct from that of an adjudicator. Combining mediation and arbitration functions (med-arb) in a single person is not generally recommended. Parties need to have trust and confidence in the mediator. Mediation works best when no one fears that something said in mediation to a mediator might be prejudicial if the matter later goes before the same neutral then serving as an arbitrator.
* Protect confidentiality. Hawaii’s new Uniform Mediation Act (UMA) provides a broad mediation privilege. The UMA applies to mediations that are: (1) required by statute, court order, administrative rule; (2) where parties and mediator agree in a record to mediate and expect mediation communications to be privileged; or (3) with an individual who holds him/herself out as a mediator. The mediator, parties and non-party participants such as expert witnesses, insurance adjusters, witnesses have protections under the UMA. Thus the statements and reports of expert witnesses, for example, are privileged. Parties and their attorneys should specifically address whether expert reports are to be covered by the mediation privilege by specific agreement. Having a written agreement to mediate where the degree of confidentiality is spelled out is advisable.
The Magic and Power of Mediation.
The magic and power of mediation lies in its flexibility and opportunity to fashion creative solutions that fit the specific needs and circumstances of the parties. In mediation, parties maintain a greater degree of control over the outcome and resolution of their conflict and usually with substantial savings of cost, time, opportunity costs and aggravation. When parties are willing to mediate in a good faith attempt to search for resolutions to mutual problems, they nearly always succeed.
Technology and its growing impact upon the workplace.
The mysterious destruction of Tom Brady’s cellphone during the investigation of the “DeflateGate” incident raises interesting and important questions on the appropriate boundaries of an employer’s ability to access an individual employee’s private smart phone and computer devices. This issue will increasingly affect unionized and at will employment relationships.
If an employee uses a personal device to conduct business, communicate with co-workers, receive and send emails or to communicate with company personnel or company servers, does an employer have the right to access the employee’s personal computer and communication devices in the course of a workplace investigation?
As employers adopt and update workplace investigation policies, employee rights and privacy expectations will increasingly be challenged. Management counsel are advising employers to adopt clear policies which set forth employee responsibility to:
- Use only company computer and communication tools for business and work related purposes;
- Prohibit or restrict the use of personal computer, smart phones and other communication devices while on company time;
- Refrain from communicating confidential and business sensitive information except in the course of and in furtherance of the needs and purposes of the enterprise;
- Cooperate reasonably with workplace investigations;
- Maintain and not destroy or alter records and information stored on computer and communication devices.
Such policies will assert the employer’s need and right to protect its business and assert the right to access employee computers and mobile devices during the course of a workplace investigation. Where such policies are clearly communicated to employees, consistently and even handedly followed and employees acknowledge their awareness of such policies, discipline may be imposed for breach of such policies.
Employees may have constitutional rights protecting unreasonable searches and seizures and privacy rights but those rights may be circumscribed where properly communicated and adopted policies impose limitations on an employee’s reasonable expectations of privacy. Management advocates recommend the use of independent forensic investigators to conduct the examinations, oversee the use of appropriately limited search parameters and to protect and screen work-related information in order to protect an individual’s personal and private activities and communications.
The increasingly sophisticated technological capability of modern tools and devices is mind boggling. Software and GPS technologies allow employers to track and record vehicle routes, location, speed and direction. Employee locations can be tracked with stunning efficiency. Cellphone and Wi-Fi technologies can locate and record the date, time, location and content of communications. Surveillance, body cams and miniature video recorders can record nearby and distant activity with sound. Increasingly, employers, unions, employment and labor advocates and arbitrators will need to deal with these new and different events and evidence.
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Lou Chang can be reached during the following hours: Mon-Fri 8 AM to 6 PM
Sat 9 AM to 3 PM
A Law Corporation
(Licensed in Hawaii)
PO Box 61188
Honolulu, HI 96839
Phone: 808 384-2468
Fax: 808 951-0888
Or use our contact form.
Note: Lou Chang is licensed to practice law in the State of Hawaii and in no other jurisdiction. The information provided in this website is not intended to be the provision of legal advice. Contacting the firm, Lou Chang, ALC does not create an attorney-client relationship and confidential information should not be sent until such relationship is established and confirmed in writing.
Areas of Practice
Business & Commercial
Real Estate & Property
Construction & Design
Labor & Employment
Injury, Liability & Insurance
Franchise & Licensing
Banking & Financial
Hotel & Hospitality
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