The Negative Effects of a Rise in Temp Workers in The U.S.

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The National Employment Law project found that between 2008 and 2012, the number of American “temp” workers grew an astounding 41%.  This trend of  temporary workers and temporary staffing has grown so much that it is no longer focused on supplying secretaries and office personnel—it now supplies a large number of employees to the fast food industry, janitorial services and other jobs that were traditionally permanent positions.

 It’s easy to see why temporary workers have been so necessary to our country’s economy.  Many businesses hire on an “as needed” basis when larger projects come in or when certain holidays roll around (particularly in the retail industry).  In these cases, temporary workers are a necessity.

 However, the trend happening now goes beyond this—businesses that once hired full-time, salaried workers for positions are now hiring two part-time employees on a per-hour basis and without benefits rather than a one salaried employee who receives benefits.  This is a result of Obamacare, which mandates that above a certain number of employees businesses are required to offer health insurance and the current Administration’s ideological penchant for applying new regulations and taxes on small businesses.  This trend is creating a large workforce made up of temporary workers who are not eligible able to join a union but at least find employment in an economic environment created by an Administration which for ideological reasons is adverse to full employment.

 Rebecca Smith, the Deputy Director of the National Employment Law Project, states, “You see in some industries a real transformation.  Hotels is one of them.  But port drivers is another.  After deregulation in the 1980s, that job of driving from a port to a rail-head or rail-head to rail-head that used to be organized by teamsters and characterized by employee drivers who earned family wages became contracted out to independent contractors.  And wages plummeted in that industry.  Those jobs are benefit-less and wages are very low.”

 This comment by Rebecca Smith is common among Left wing proponents.  But it fails to recognize that the International Brotherhood of Teamsters was directly responsible for the incomparable high wages and onerous work rules that resulted in high food, clothing and housing costs.

 Unlike the Socialist European system where employees cannot be laid off and the employment of  temporary workers is prohibited prices for the basic necessities of life are extraordinarily high and employment remains at a constant 10 to 12 percent.  This is why the American labor system is more dynamic and growth oriented.

What Small Businesses Need to Know About Environmental Law

What Small Businesses Need to Know About Environmental Law

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The upcoming year holds a lot in store for businesses when it comes to environmental law.  Businesses that are in the know will benefit from understanding the influence of environmental law on the broader scale and knowing their requirements to implement change on the local level.  The forecast includes a deeper dive into reporting, fines, and positive incentives.

Fines for Environmental Offenses

Fines are being increased in the U.K. when it comes to breaking regulations, and it’s likely that this trend will continue around the globe.  An increased focus on environmental regulations and improvements increases the stakes for small businesses and large corporations.  Business should be mindful of current regulation fines and be prepared for them to increase.

Carbon Emission Reporting

More companies around the world are being asked to include carbon reporting in annual company documents.  If you’re not aware of your carbon footprint, consider being evaluated by an environmental inspector to learn the areas where you can improve.  Being ahead of the game and thinking about changes you can make to reduce your carbon emissions is a good step to take.  At least be aware of your carbon emission influence.  However while this heightened regulatory worldwide regime responds to the environmental illusionists, reality has struck a heavy blow caused by a revanchist Russia.  It is finally dawning on the West that the only peaceful strategy in response to Putin’s ultimate takeover of Ukraine and threatening the EU’s oil and gas supply from Russia is forcing the price of oil below $90 a barrel and increasing LNG production in America and the West.  The only question is whether America will abandon the environmental illusionists and step up to the plate.

Water Offsetting

In the international arena, water offsetting is gaining traction as a movement.  This refers to the concept of companies committing to reduce their water usage in exchange for water allowances.  This is being promoted as a key way for companies to be more aware of their water usage and to develop strategies in-house to cut down for the future.  This seems to hint at a future where water usage and impact are calculated and evaluated.  Water scarcity is an issue getting a lot of attention at the national and international level, so companies can expect a bigger focus on water consumption.

Going Green Subsidies

Many governments are looking to improve programs that exist to give subsidies for those engaging in green initiatives.  Just as fines are being reviewed on the international level, so too are programs where companies employ efforts to decrease their footprint on the environment.  Whether negative incentives like fines or positive incentives like subsidies work better for change is as yet not completely documented in research.  The bottom line is that companies can expect expansion in both avenues.  Those companies conducting energy audits and looking for ways to go green should look into available incentives to maximize their improvements.

Employers Should Prepare for New Rulemaking Efforts

Employers Should Prepare for New Rulemaking Efforts

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Starting in 2011, the National Labor Relations Board is starting efforts to revive their notice posting rule for the workplace.  This rule, which is known as the Notification of Employee Rights under the National Labor Relations Act, would have mandated that employers post an open notice of employee rights under the National Labor Relations Act.

The rule revision has gone through difficult times, especially since May 2013.  At this time, a case involving the National Association of Manufacturers in the U.S. Court of Appeals Circuit for D.C.  indicated bad news for revision opportunities.  In that case, the enforcement mechanisms under the law were determined to be unlawful.  Four months after that, the court dismissed a petition from the NLRB to review.

In June 2013, the NLRB was struck down again, when the Fourth Circuit determined that the rule was also unlawful.  In that case, which involved the Chamber of Commerce, the court found that the rule went beyond the Board’s rulemaking capabilities granted by Congress.  When the National Labor Relations Board pushed for a rehearing later that summer, they were denied.

After hitting so many walls, the Board’s only opportunity to push for the rule was at the Supreme Court.  The requests for this would have had to be in by January 2, 2014, and the Board missed the opportunity to act by that strict deadline.  In a sense, this means that the issue will be stalled legally at least for the time being.

Employers shouldn’t rest easy, though.  It’s a more likely scenario that the Board is choosing which of its regulatory battles to fight.  The Board recently dismissed an appeal involving a district court case which invalidated the expedited representation election rule that was first issued in December of 2011.  This move indicates that the door is open for a restricted board to issue another more in-depth rule regarding election procedures.  Some individuals believe this indicates the Board’s sending all resources into the process of revising and then reissuing the election rule.  This could be a sign that while employers can consider the previous issue put to bed for the moment, it’s very likely that a bigger legal battle is coming down the pike on rulemaking instead.

Employers would be wise to keep an eye out for updates on rulemaking and the National Labor Relations Board.  Big changes may be in the works that could trickle down to many businesses around the country.



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America, today, faces an economic challenge which it has never faced in all of its 225 years of existence: How to address the accelerating development of technology in the work place.Except for the few times during which America experienced economic down turns the availability of good jobs and good pay for the broad spectrum of its population has been the envy of the world.  Generally speaking, and not until recently, there has always been agreement among America’s leaders that capitalism, not necessarily unrestrained, creates wealth and thereby opportunity for work.  The Constitution of the United States of America, America’s most important founding document, promotes the concept of limited government allowing whatever else, economic or social or religious, to thrive, and also to be destroyed, without the directorial hand of an overarching government to proverbially pick winners and losers.

Speak to any immigrant, from any country, and ask “Why did you come to America?” and he or she more than likely will respond with one word, “Work.”  I suppose as Americans we would prefer to hear something else, perhaps “Freedom.”  But truth be told being able to work where you want, at what you want and how you want provides all the freedom that one requires to be truly free.  The right to vote in a country that does not provide work is not truly a free country.

Over the last 5 years more than 20M people have remained out of work representing, at a minimum, 13% of the work force.  This condition of protracted unemployment is unusual in this country and is indicative of something structural rather than a temporary glitch in a perceived America as an economic powerhouse.  In my previous article entitled the Future of Unions: Part I, I referred to the leadership of private sector unions in their response to the opening of world labor markets and its competitive effect upon the American workforce as, among other characteristics, feckless and confused.  But it would be unfair to blame this same union leadership for the current troubles of decreasing union membership in this economic environment of advancing technology.

Work in America, as well as throughout the world, is becoming divergent.  The advent of technology in the work place requires highly skilled, employees conversant in math and/or language.Technology also suffers the presence of low skilled, undereducated workers, and thereby low paid, to perform the usual menial jobs that humanoid robots could perform but are, as of yet, in the inchoate stages of development.  This is a harsh truth.  However, low skilled, undereducated workers in America know this truth.  In fact, because they experience the deleterious effects of this truth every working day, they are despondent, angry and perhaps, even more unsettling, unpredictable.

Union leadership, in this country,especially in the private sector economy, is flummoxed.  Organizing the highly skilled is near to impossible for many obvious reasons, the most important of which is that the highly skilled do not see themselves as being represented by individuals who do not share their level of education, their values or their experiences.  Organizing low skilled employees presents even greater challenges for the union leadership.  In the prior years of union organizing employees who manifested an interest in having union representation were vulnerable to being fired, notwithstanding, unlawfully.  Today the fear is not being fired, which offers some protection pursuant to the National Labor Relations Act, but rather being replaced by a machine.  The cruel fact is that technology has reached a level of sophistication unmatched in the history of work and when employers weigh the benefits of introducing unfettered technology into the work place as against the inconvenience of an unpredictable, low skilled, and reactionary human the choice becomes obvious.

I appreciate that what is being written here may be for some uncomfortable to accept if not downright offensive.  But this article has to do with the future of unions and as you can see from my above description, there is no future.  Not unless union leadership, while it has the monetary resources, begins to reinvent the purposes of private sector unions and the role they play in the American economy.

This article is nothing more than my brief opinion and is not meant to explore the myriad of ways private sector unions may be able to address the problems which I have described.  Moreover I will let those who have a vested interest in unions’ success to deal with those problems.  But I have one idea.Research shows that the education that colleges provide today is not necessarily relevant to work, unless the student is proficient in math and language. Colleges today are expensive and in more cases than not useless in finding a job. They leave young people with the world ahead of them burdened with extraordinary debt which they have no means to repay.  However by increasing the level of vocational skills among those who have no interest in attending collegeworkers can delay the inevitable onslaught of technology in the work place.  Private sector unions, with their vast economic resources, instead of using that money to manipulate the political and social systems of the country should expand the apprentice programs found prevalent in the construction industry into the manufacturing and service industries.for their members, only.  Just a thought.


private sector unions

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In 1973, I began practicing law.  The law firm with which I was associated represented both unions and management, a very unique client base to say the least, but one which provided me a deep insight into labor relations in the United States.  In 1973, private sector union membership represented 25% of the national workforce.  Today, that percentage of union membership is 6.6%.  Notwithstanding that the workforce has nearly doubled during the same period of time, private sector union membership has decreased from 38 million to 20 million.  This decline represents not only a 50% decrease in union membership and union dues but a dramatic decline in political influence in the cities, states and the Federal governments.  How, in such a short period of time, historically speaking, did such a calamity occur, especially when during the same period of time public sector unions grew exponentially representing today nearly 75% of the public sector workforce?


When unions began developing in the 1930’s, they concentrated their organizing activity on the low hanging fruit of America’s industrial base: manufacturing, construction, tool and die, etc.  WWII and the 1950’s were the halcyon years of union strength and power.  Private sector union membership in the workforce reached an all-time high of 35%.  Wages, benefits, vacation and sick days increased and work rules became more stringent thereby straight jacketing management’s ability to reduce costs and increase efficiencies.

Companies began scrambling for cheap labor at first located in the U.S. and then abroad.  It wasn’t too long before American companies were planting their flags throughout the world and building new plants in order to escape the union stranglehold.  You can’t say this was the union’s fault alone because sooner or later the American wage base could never compete with wages abroad.  However unions could never seem to understand throughout this period of retraction that working with management rather than against it was the better strategy.  There are some very fundamental reasons unions were not capable of responding constructively to their obvious economic calamity and we will discuss them below.


Throughout its modern history dating from the 1930’s union leadership has been comprised of former bench workers with education levels rarely exceeding high school.  Union leaders reached the exalted positions of president, secretary-treasurer, business representative, etc. by a combination of political skill and more often just plain muscle.  During its early turbulent years for union leaders to obtain a higher education was not only worthless but it had the uncanny character of making one appear feckless.  Union leadership demeaned the professional class and used it only when absolutely necessary.  Lawyers, accountants, consultants were allowed into the union’s sanctum sanctorum only when its leadership believed it was necessary.  Strategy was left to those who won the prize of leadership.  The professionals were there only to clean up the mess.

Management is always described by the union leadership as greedy and uncaring and therefore has to be taught “lessons.”  Union leadership inveighs against the American economic system of capitalism characterizing it as one which isagainst workers and workers’ rights ignoring the fact that the very existence of modern unions was supported by an American Congress which passed the National Labor Relations Actof 1936 upon the insistence, among others, of the industrial leaders of the day.

The organizing tactics used in the 1930’s have never changed substantially to this very day.  The vituperation and invective used by union leadership in the 1930’s, ‘40’s and ‘50’s against management during its organizing campaigns are still used today and what is even more surprising believed in even more strongly.  Is it any wonder that union organizing has had little effect on increasing union membership?  In fact, union organizing efforts have been so unsuccessful that the AFL-CIO, central HQ of the union movement in the United States, has attempted through political lobbying to change the laws affecting union organizing through card check (gaining representative status only by counting signed cards) or shortening the period between submitting a petition for an election and the actual date of the election.  This shortening of the campaign period provides management with less time to have an influence on the election’s outcome.


Though, throughout its modern history in the United States, private sector unions have always contained a streak of Marxist ideology they are not inherently Marxist.  In fact one could cogently argue that unions are inherently part of the capitalist system since they are the logical outgrowth of the invisible hand of competition between labor and capital.  It was Abraham Lincoln who recognized in his message to Congress on December 3, 1861 that, “Labor is prior to, and independent of, capital.  Capital is only the fruit of labor, and could never have existed if labor had not first existed.”  Lincoln’s statement is pure Americana and it has been believed and acted upon by Congresses and Presidents throughout America’s history.  This being said union leadership, especially after the 1930’s, unlearned in American history and its ideologies had a tendency to adopt a more Marxist view of the struggle between its membership and management.  It is this abject failure of union leadership in understanding labor’s roots in the American experiment that has resulted in today’s anemic and dying union movement.  Moreover, it has allowed unions to become enmeshed in ideologies alien to its main purposes: higher wages, better benefits and workers becoming more productive.

What does the support of “gay rights”, “pro-choice”, “income re-distribution”, “immigration”, “Occupy Wall Street” and its companion “the 1%” have to do with wages, benefits and workers’ productivity? Nothing.  Yet, today’s private sector unions join the elite chattering classes, who have little respect for the working man and woman.  In fact, none of these highly educated, well paid elites would ever join a union or have their children join one.  Yet the “useful idiots” of the union leadership, as Lenin, if alive, would describe them today, join with enthusiasm the ideologies of the left without realizing that by doing so they alienate the general public which generally supports union goals and revel in their achievements.  However, Americans are confused as to why private sector unions are on the street supporting causes that are not relevant to their inherent goals.

It is this phenomenon which is more symptomatic of private sector unions today and their failure as an American institution than its underlying reason.  The fact is that private sector unions are now and always have been political entities rather that corporate.  It is this defect which leads to the typical aspects of politics: demagoguery, self-dealing corruption and an uninterested and unprepared electorate.  Seeing little change in this phenomenon the future of private sector unions, notwithstanding their great contributions to the American worker in the last 70 years, looks dark.

A final note:  Recently the members of the International Association of Machinists at Boeing voted against their leadership to accept a management proposal which would deleteriously affect their pensions and other benefits but keep the production of the 777X airliner in Seattle, WA.  This was an historic vote since it represented, perhaps for the first time, a private sector union election in which private sector union members voted for their economic future and not for some irrelevant ideology promoted by their leadership.  The next step is getting rid of their procrustean leadership.  Here’s hoping.

Obamacare And Its Effect On Labor Union Negotiations

Obamacare And Its Effect On Labor Union Negotiations

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Recent negotiations between labor and management have reached a point where Obamacare (The Affordable Care Act) has become a serious sticking point. Most collective bargaining agreements provide health care through what is described as a welfare plan. These welfare plans are funded by company contributions into a jointly administered trust fund (equal number of union and management trustees). Though the union and management trustees, as a group, have a certain amount of skin in the game, the practical nature of the trust provides the union with a lot more responsibility and concern since the participants are union members and they vote!

The one item of negotiations which is usually not negotiable is the contribution amount, which is to be contributed by the company for each participant since that calculation is performed by a statistician who determines what that amount is based upon certain known criteria. Before Obamacare, if management wanted to provide a health plan for its employees establishing that plan through a jointly administered trust fund was the most practical of options.

Obamacare has now provided management with a new and very attractive option: Propose that contributions into the welfare fund cease and allow the employees to find their own health care on the exchanges (state or Federal). Health care contributions can range from $800.00 to $1,500 per month per employee.

Under Obamacare, companies with 50 or more employees who choose not to provide health care will of course pay a small penalty for each employee. However compared to the annual contribution amount paid for health care for each of its employees, the penalty is negligible. Now here is where the game gets interesting.

Unions have relied heavily upon welfare plans to keep their members in line and not jump the union ship. Employees know very well that companies that provide health care are becoming more and more scarce and a union shop provides that much desired health plan. Now, with Obamacare, employees need no longer have to be concerned with that issue and they can dump the union and still keep their health care which they obtained by themselves through the exchanges. Furthermore, if unions no longer have a health plan in force through multiemployer (two or more companies) jointly administered trust funds, their attractiveness to employees they are attempting to organize is severely lessened.

As we look back at the time when Obamacare was being proposed by President Obama, the Democratic Party unions were in full support. The union leadership at that time allowed their need for maintaining a viable labor organization to be superseded by their ideology. In the past, much to their credit, unions have promoted legislation which has always favored employees such as the Fair Labor Standards Act, the Fair Employment Practices Act, the Family Medical Leave Act, the Americans with Disabilities Act, etc. However, the Affordable Care Act will result in even greater losses in membership than unions are currently experiencing.

Why Companies Should Mediate Employment Disputes

Employment Dispute Mediation

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No matter how large or small a company is, there is one reliable fact of life: At some point, there will be a dispute between the company and one of its employees.  Most of the time, it is the employees who try to file a lawsuit against their employers for a different reasons.  These disputes come in many shapes and sizes: wrongful termination claims, sexual harassment claims, unsafe working condition claims.  Whether objectively true or perceived by an aggrieved and upset employee or former employee, these claims represent potentially costly and embarrassing public moments that can quickly erode a company’s assets in the form of attorney fees and potential settlement awards.

In almost every case, it is in the company’s interest to pursue a mediation solution when they come into conflict with an employee or former employee.  If nothing else, an attempt at mediation in order to avoid litigation on the part of the employees is a no-lose proposition for both sides, and should always be attempted.

The Downside of Litigation

Mediation can be a tremendous advantage to both parties.  For the company, they can often avoid not simply the cost of a litigation and possible settlement order, but also avoid the bad feelings and distrust that a lengthy lawsuit can engender not only between the company and the aggrieved employee, but between the company and all of its employees.  The rest of the staff will naturally feel some kinship with the aggrieved employee, and negativity generated by a lawsuit can infect the entire workforce.  Instead, mediation demonstrates a commitment to solving the problem in a friendly, non-aggressive manner.

The Upside of Mediation

In mediating employment issues, the situation can be better controlled.  This type of alternative dispute resolution is private, saving the public face of the company while a solution is sought.  It also avoids Discovery, which can often unearth more problems than anticipated.  Sometimes, as investigation turns up evidence of wrongdoing by managers or supervisors, the litigation unintentionally swells into something unmanageable.  In mediation, on the other hand, a good-faith effort can often resolve the dispute with a manageable expenditure and no public relations cost at all.

More importantly, mediation invites the employee into the process as an equal, setting the tone for negotiation that can often avoid punitive attempts to punish a company seen as unresponsive and defensive.

Mediation cannot, of course, solve all employee disputes, but it can help any company avoid turning a disgruntled employee’s complaint into a financial and public relations fiasco.

Why Environmental Disputes Should Be Mediated

Environmental DisputeEnvironmental awareness has been growing internationally for decades now, slowly becoming the normal everyday approach to decisions as far-ranging as the cars we drive to the light bulbs we use. While engagement in environmentally-sound practices varies from individual to individual, the environment is on everyone’s mind in almost every aspect of modern life.

When disputes involving environmental concerns erupt, passions often run very high. This is partly due to an old and inaccurate attitude that environmentally-minded people are tiny David’s fighting against the uncaring corporate Goliath, and partly due to the confusing and often contradictory mass of information and data, making it difficult to state clearly who is right in any given scenario. One thing is certain, however: Mediating environmental disputes is almost always preferable to litigation.

The Confused Law

One reason why environmental dispute mediation is the better than litigation is the chaotic state of much environmental law all across the planet. Laws are only as good as the language they use and the data they are based on, and the ongoing controversies surrounding many environmental issues have resulted in laws that are frequently too vaguely worded, years out of date, or simply not used as originally intended. Litigation over environmental issues is unpredictable, as it is subject to interpretation and subjective judgments on the part of judges or juries.

Benefits of Mediation

Mediation, on the other hand, leaves control over the situation in the hands of the parties involved, giving them total freedom to seek an acceptable solution to their dispute. Unlike litigation, which locks them into often unsatisfactory or ineffective penalties or a narrow range of solutions that are satisfactory to no one, mediation allows the parties to craft a truly useful solution that addresses the concerns of both sides.

Additionally, when mediation is chosen as a first attempt at resolution, it leaves open the possibility of litigation if mediation fails to resolve the dispute. This can not only be a fallback solution in case every other effort fails, it can also act as motivation for one or both parties to negotiate in good faith and renewed energy to avoid the costly and chaotic adventure in a courtroom.

When it comes to environmental disputes, the goal is to protect the planet and its vital resources, not to get bogged down paying attorney’s fees. As a result, it is almost always best to pursue a mediated solution instead of litigation.

Why Do Matters Involving Employment Disputes Lend Themselves to Mediation

Employment DisputeImagine this scenario: you own a business and have learned that one of your managers’ actions might be bordering on sexual harassment.  Some employees within the company have complained and one employee is even threatening a lawsuit if something isn’t done immediately to change this manager’s behavior.  What do you do?  Do you wait until a lawsuit happens or do you seek an alternative form of dispute resolution?

The best way to handle a situation like this is through employment mediation, a process that encourages open communication between all parties involved with the help of a highly trained facilitator.  During the mediation hearing, a mediator will give each party the opportunity to communicate their “side” of the dispute, ensuring that all underlying issues that might be causing the dispute are brought out into the open.  The best part is that this is handled in a completely private and confidential manner, which helps companies and departments maintain their reputation without the embarrassment of public lawsuits.

In sexual harassment cases, in particular, it is often the case that the “harasser” is not aware that he or she is acting inappropriately.  Conversations and suggestions that are completely acceptable in a social setting (a bar, for example) might not be acceptable in a workplace, especially when the receiving party is a subordinate.  This is why mediation is so successful for these situations: mediation allows both parties to air their concerns and discuss them openly.  In addition, if a mediator is chosen who is an expert in sexual harassment and employment laws, he or she will be able to advise the “harasser” concerning the potential legal consequences of such actions if a judge were to hear the case.  Oftentimes, this expert advice is all that is needed to quell the harassment.

The best part about mediation for employment disputes, however, is that it is handled in such a way as to ensure that an amicable working relationship is continued between the parties after the dispute has been resolved.  This relationship will be important to ensure that everyone can get back to business as usual, without the bitterness and hostility that are often the result of a litigated dispute.

Additionally, and perhaps most important for the company’s bottom line, the company will save time and money in sending the dispute to mediation.  Mediation is a lower-cost and efficient option to the expensive and time-consuming option of litigation.

What To Look For In A Mediator

Look For In A Mediator

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There’s no doubt that mediation is often the best way to resolve legal disputes, particularly disputes in which it is important to maintain a relationship with the other party such as employment disputes, family disputes or child custody and co-parenting arrangements.  But with the wrong mediator facilitating the discussion, relationships could become even more strained than before, and a successful resolution might not be found. These situations almost always end in litigation, which is the very thing the parties in dispute attempted to avoid in the first place.

So how do you know how to choose the best mediator for the task? The first rule of thumb is to look for a mediator with extensive experience as an advocate in the field in which mediation is sought.  This means that if your dispute is in labor and employment, finding a mediator with extensive experience in that area will make a significant difference in the outcome of the mediation proceedings.  A mediator with experience in the area of your dispute means that he or she will be able to inform you of what a judge would likely rule if you took the case to court.  This knowledge and background information is an important piece of the puzzle to successful dispute resolution because it allows all parties involved to have a more realistic view of the situation and come closer to a compromise in the process.

The second most important trait to look for in a mediator is integrity.  While this trait might be harder to recognize than experience, integrity will usually show itself in a mediator’s activities and interests outside of the office.  Does he or she give back to the community?  Do others speak highly of him or her?  Finding a mediator with integrity means that your dispute will be handled with integrity—something that will be important to ensure fairness for everyone involved.

The third most important traits to look for in a mediator are creativity and innovation.  With creativity and innovation, a mediator can help clients look for solutions to their problems that are “out of the box”—something that could be valuable to the process, particularly if the parties reach a stalemate.

Finally, it is important to look for a mediator with an engaging personality.  Your mediator’s personality could make a significant difference in your level of comfort in the mediation session. Being comfortable means being able to open up and communicate freely—something that is absolutely necessary in mediation.