Mediation: Case Study
Case: When Phillip Moffett went to work for the Aztec Pharmaceutical Company as a senior researcher, he signed a covenant that precluded him from working for another pharmaceutical company for five years after his employment with Aztec terminated. After working for Aztec for three years, Moffett was lured away by another pharmaceutical company. Moffett claims that the covenant he signed was unreasonable and therefore unenforceable. Aztec claims the covenant is a standard industry covenant and is enforceable, (Frey, M., p. 177).
Mediation is an essential component of directed negotiation; one that allows the parties to reach a point of consensus through consulting a neutral third party in private and compromising their expectations to settle on a resolution. The Anderson Law Dictionary defines mediation as “the settlement of disputes by the amicable intervention of an outside party who is a stranger to the controversy,” (Gilmer, W. Jr., p. 212). The Wolters Kluwer Aspen Casebook states that “[t]he lawyer-mediator can set out the legal issues in a way that may remove some unevenness in negotiating power between represented and unrepresented parties,” (Goldberg, S. pp. 183, 184). Private mediation is defined by the Oxford Dictionary of Law as “[a] form of alternative dispute resolution in which an independent third party (mediator) assists the parties involved in a dispute or negotiation to achieve a mutually acceptable resolution of the points of conflict,” (Oxford, p. 1390). Martin Frey, Professor Emeritus at the University of Tulsa, defines that, “[t]he mediator is in some ways a negotiator but is negotiating with two parties at the same time. The mediator, however, lacks both a personal interest in the case and the settlement authority to settle the case. The mediator is and must remain neutral,” (Frey. M., p. 152). The Bouvier Law Dictionary declares mediation as “[n]egotiation with the aid of a third party;” while Black’s Law Dictionary assents mediation to be “[a] method of nonbinding dispute resolution involving a neutral third party who tries to help the disputing parties reach a mutually agreeable solution; conciliation,” (Sheppard, S., p. 967; Garner, B., pp. 507, 508).
Private meditation is voluntarily used when the disputing parties cannot come to a resolution on their own, or when each party seeks direction through a neutral expert in the subject matter at hand. The mediator acts as an advisor, facilitating the disputing parties’ ascent to establish a point of diarchy; unanimous consensus. Utilization of private mediation would ensure that parties were able to receive enough information in order to make an educated decision; mutually self-declared. Private mediation does not involve a decisionmaker, rather, it imparts the testimony and prophesy of experts, to lay claim towards what exactly is required to achieve consensus and appropriate restitution in the case of an aggrieved party’s inability to resolve the dispute with their current level of knowledge in the subject. By gaining the opinion of an expert, the disputing parties can gain better traction in the subject, and reel in their expectations to a reasonable level, allowing them to bring resolution to the conflict.
First, the mediator will introduce the parties to the mediation process; this is followed by the parties’ opening statements, where each states their initial positions, (Frey. M., p. 152). The presence of the client during mediation can impart influence over the process; either reinforcing the lawyer’s preparation or detracting from the focus of finding a resolution, (Goldberg, S., p. 345). The initial introduction allows the mediator to gain control of the dispute between the parties; at this point, the parties are reminded of their voluntary commitment to negotiate, while establishing ground rules for mediation; at any point, either party can withdraw themselves willingly from the negotiation. The second step is the presentation of facts, reviewed by the mediator; facilitating negotiation between the parties, with the objective of achieving a mutual resolution. This is an important aspect of private mediation, as the parties are able for the first time to hear their opponent’s position in explicit detail. Lastly, after careful refining in accordance with the wishes of each party, the mediator assists the parties in finalizing their agreement. In the third phase of mediation, the neutral mediator may implement a private caucus with each party, whereby the absence of the opposing party allows for a more direct approach to figuring out exactly what the party within the private caucus is expecting, (Frey, M., p. 153). The information discussed during mediation is private and confidential; the mediator must remain neutral during the entire process and will not side with one party, nor adjudicate a resolution; moreover, either party can terminate the process at any point, (Frey, M., pp. 159-161).
The parties’ utilization of private meditation would allow the case to be settled away from the courts of public opinion, with both parties arriving at some form of mutual resolution; in mediation, the solution must be agreed to by both parties, and unfair treatment may not be claimed. Meditation is a legally non-binding agreement, agreed to by both parties, therefore the resolution is voluntarily upheld by both parties. Martin Frey asserts that “[n]either party can claim to be treated unfairly by the other party…If mediation produces an agreement, the dispute is settled on the terms agreed to by the parties. If one party feels the terms of the proposed agreement are unfair, he or she should not accept the proposed agreement,” (Frey, M., p. 161). In the case of Aztec Pharmaceuticals v. Moffett; Aztec Pharmaceutical Company’s claim that Phillip Moffett should be required to uphold the contract both parties initially agreed to is well-merited. Despite its value of merit, it cannot be enforced, as Moffett retains the right to self-sovereignty; moreover, the organization cannot resort to monopolistic totalitarian tactics. One of the goals of private mediation is to bring parties with potentially abstract impartations, in esse unrealistic goals and expectations, to a rational perspective conducive to compromise. In the case of Phillip Moffett, he willingly declared to be precluded from working for another pharmaceutical company for a period of five years, yet was convinced by an external entity to void his own standards of his contractual morality, voiding the covenant he had ascribed to. Despite Phillip Moffett’s stated grievance over the terms he had personally committed himself to, Moffett was the breaching party; this gives legal precedence to Aztec Pharmaceuticals, as they upheld their end of the contract, namely as the nonbreaching party.
A Federal Trade Commission (FTC) report by the Antitrust Division Of The United States Department Of Justice (DOJ) states that “[a]nticompetitive employment agreements result in a range of harms by depriving workers of a competitive market for their services and by depriving employers of a robust pool of available employees,” adding that “[n]on-competes that are broad in scope, duration, and geography are particularly problematic. For those reasons, like the FTC, the Antitrust Division is concerned by the proliferation of non-competes throughout the U.S. economy,” (Justice, pp. 3, 4). The Supreme Court has declared that non-compete clauses are governed by common law, referencing back as early as Dyer’s Case of 1414, (Justice, p. 2).
The Economic Policy Institute (EPI) produced a study in 2019, revealing that 49.4% of responding establishments mandated at least some of their employees to enter into a noncompete agreement, while 31.8% mandated all workers to enter this form of agreement. Moreover, 53.9% of responding establishments utilize mandatory arbitration agreements. According to the EPI, “Mandatory arbitration agreements effectively bar employees from going to court, instead forcing workers to resolve workplace disputes in an individual arbitration process that overwhelmingly favors the employer,” (EPI). It is undeclared in the proceedings if Aztec Pharmaceutical company implemented a mandatory arbitration agreement within their covenant.
The Legal Information Institute asserts that “the legality of non-compete agreements differs from state to state; in California, these policies are prohibited, and unsupported by the courts, “in nearly all circumstances,” (LII). Conclusively, the LII denotes that “courts tend not to uphold non-compete agreements that bar former employees from obtaining new employment entirely as these clauses act more like penalties to dissuade employees from quitting,” (LII).
A private mediator could voice the legal rights held by both Moffett and Aztec Pharmaceuticals, resulting in the reconsideration of both parties’ claims. Moffett has devoted himself by contract to uphold an enumerated obligation to Aztec Pharmaceuticals; yet, unless the pharmaceutical company was one of the 53.9% responding establishments to the EPI study conducted in 2019, Aztec Pharmaceuticals’ contract bears no legal authority over the actions of Moffett, and physically cannot prevent him from seeking employment elsewhere. A mediator would assert that Aztec Pharmaceuticals cannot legally force Moffett to work at the company, nor can they waive Moffett’s right to work should he decide to leave the company. Although its jurisdiction is dependent on the state the contract was formed, whereby this dispute originated; an adjudicated resolution to this case would likely result in the court’s ruling in favor of the employee, Phillip Moffett. Aztec Pharmaceuticals was the nonbreaching party, and could file a unilateral suit against Moffett, or opt for mediation-arbitration, should the party be unable to reach a consensus. As Martin Frey describes of the emotional state of the compromising parties reaching an agreement; “[w]hen a party agrees to a mediated solution, he or she feels that something has been given away, but something has been gained in return,” (Frey, M., p. 161). Unilateral change is not always supported by law when it comes to corporate entities. According to the American Bar Association (ABA), “[u]nder the current state of law, whether management must bargain over a mandatory subject covered by a management rights clause depends on who is interpreting the applicable law,” (ABA, p. 407). The ABA states that should an employer want to change employee conduct, they first must “consider whether it must provide the union with notice and the opportunity to bargain before implementing the change,” referring to this as the employers, “duty to bargain,” (ABA, p. 407). The specificities of these words come down to the individual interpreting these obligations. As in the case of the employer, the employee retains no standard level of consideration required before terminating their employment; there is no standard beyond the courtesy of providing a two-week notice. The exceptional nation of America prevents Moffett from being physically forced into labor against his will; should he decide to leave the company, his Constitutional right to self-sovereignty through the Bill of Rights, grants him access to this liberty. Private mediation would enable both parties to acknowledge the State’s expectations, in accordance with their own obligations.
The New Testament’s Apostle Paul and the Old Testament’s Prophet Job disclose the importance of mediation, in both the court of law and of public opinion. As Paul asked in Galatians, “[w]hy, then, was the law given? It was given alongside the promise to show people their sins. But the law was designed to last only until the coming of the child who was promised. God gave his law through angels to Moses, who was the mediator between God and the people. Now a mediator is helpful if more than one party must reach an agreement. But God, who is one, did not use a mediator when he gave his promise to Abraham,” (Galatians 3:19-20; NLT).
Paul reiterated this point in 1 Timothy, where the Lord’s Holy Spirit wrote, “[f]or God is one, and there is one Mediator between God and the sons of men—the true man, Jesus, the Anointed One. He gave himself as ransom-payment for everyone. Now is the proper time for God to give the world this witness. I have been divinely called as an apostle to preach this revelation, which is the truth. God has called me to be a trustworthy teacher to the nations,” (1 Timothy 2:5-7; TPT).
In the Old Testament, Job similarly declared, “[i]f only there were a mediator between us, someone who could bring us together. The mediator could make God stop beating me, and I would no longer live in terror of his punishment. Then I could speak to him without fear, but I cannot do that in my own strength,” (Job 9:33-35; NLT).
Since the fall of man, there has been a persistent need for a mediator; in esse, God has invoked a desire to co-labor with us as a neutral private mediator, referencing our earthly obstacles and tribulations on His eternal word. In Genesis 1:19-20, God brings various creatures to Adam, who is requested to name them. Once the animals are named, God creates Eve; not to help mediate Adam’s future decisions, but, as discovered after Adam’s disobedience from the divine law established by God; to offer the opportunity to consult firsthand with Yahweh. Adam, along with his ancestors to this day have been exiled from Heaven; yet the Lord has always been there for us following the great flood, when it was declared to Noah God’s affection for our species, and willingness to mediate our decisions to assist in their execution. Had Adam consulted with his mediator, God, he may not have been swayed by Eve to consume the forbidden fruit. God stands not as the arbitrator of our lives, but instead as our silent mediator, available for consultation over all decisions; in those willing to listen. By allowing the voice of God to influence our actions, acting as an objective reference, attorneys, and all of humanity can attain a lasting benefit. The challenge is quelling our inner egos and bringing petition before the Lord in all that we do; His neutrality remains rooted in Biblical doctrine, opposing our personal depraved ambitions; redirecting our passions into contributing to compromising our sinful nature to ensure the betterment of His Kingdom. Mediators are responsible for ensuring the disputing parties’ remembrance of their own humanity, while influencing the compromising excessive demands outside the context of the mediator’s suggestion; yet the parties' willingness to listen to and adhere to the mediator’s advice is strictly voluntary. The process of private mediation is meant to provide an objective reference inspired by the divine petition for God; allowing an expert on the subject to give insight to each party, each regaining the sight towards rationality and compromise. Private mediation would ensure both parties can reach a compromise without later doubting their actions, as the totality of information would be presented before they mutually arrive at a decision.
Bibliography
ABA. (Accessed on November 16th, 2023). When Are Employers’ Unilateral Changes Prohibited? A Look at E.I. Du Pont, Minteq, and Graymont: A Management Perspective on the Need for a Uniform Standard. https://www.americanbar.org/content/dam/aba/publications/aba_journal_of_labor_employment_law/v32/v32n3/jlel-v33n33-when-are-employers.pdf
EPI. (Accessed on November 16th, 2023). Noncompete Agreements: Ubiquitous, Harmful to Wages and to Competition, and Part of a Growing Trend of Employers Requiring Workers to Sign Away Their Rights. Economic Policy Institute. https://www.epi.org/publication/noncompete-agreements/#_note12
Garner, B.A. (2021). Black's Law Dictionary, Eleventh Edition. St. Paul, MN: Thomson Reuters.
Gilmer, W. Jr. M.S.L.S. J.D., (1888, 1892, 1924, 1956, 1986). The Law Dictionary, Sixth Edition. Anderson Publishing: Cincinnati, Ohio.
Goldberg, S.B. (2003). Dispute Resolution - Negotiation, Mediation, and Other Processes, Fourth Edition. Wolters Kluwer, Aspen Publishers: New York, NY.
Justice. (Accessed on November 15th, 2023). Comment Of The Antitrust Division Of The United States Department Of Justice. Docket No. 2023-0007. https://www.justice.gov/media/1288391/dl?inline
LII. (Accessed on November 16th, 2023). Covenant Not to Compete. Legal Information Institute. https://www.law.cornell.edu/wex/covenant_not_to_compete.
Oxford. (2022). A Dictionary of Law (Oxford Quick Reference). OUP Oxford. Kindle Edition.
Sheppard, Stephen Michael. (2012). The Aspen Publishing Bouvier Law Dictionary: Quick Reference. Aspen Publishers. Kindle Edition.