The coronavirus pandemic has forced many industries to conduct much of their business remotely. The legal profession, and particularly mediation, is no exception. Nonetheless, some attorneys and their clients remain wary of remote mediation. Is the technology reliable? Is it secure? Will all parties be fully engaged in the mediation? Here we address some of these concerns and provide tips for making the process a success.

As mediators, we’ve seen a number of technology concerns with respect to remote mediations. Here are the most common ones, along with our recommendations:

• Do I (or my client) already have to be familiar with Zoom or other programs? Virtual programs like Zoom are not difficult to use, so you don’t need prior experience with them to mediate. But there are some tips to keep in mind to make the experience effective. For instance, with Zoom, only the person speaking will have the ability to use the microphone so others cannot interrupt. In our experience, once parties begin using virtual programs like Zoom, they almost forget they are mediating remotely.

• What happens if I don’t have a reliable internet connection? You will need access to secure encrypted WIFI, which excludes using the internet in a public place like a coffee shop. But attempting to mediate in a public place isn’t recommended anyway due to confidentiality concerns and distractions. Poor internet connection can affect the mediation, so check with your internet service provider before mediation to ensure there won’t be any scheduled outages, maintenance, or other issues. In the event of an outage, parties have been able to rejoin the conference with only a brief interruption in most cases.

• What sort of camera do I need, and is the one on my phone good enough? It’s recommended that mediation participants use a desktop or laptop computer with a working camera and microphone. An alternative is a tablet (e.g. iPad) or smartphone, which participants should have anyway as a backup. In case the internet or other technology becomes an issue, a smartphone will allow the mediation to continue.

• Are Zoom and other programs secure and confidential? Virtual programs like Zoom are safe when used with password protection and waiting rooms to monitor access. The more pressing security and confidentiality issues come from reliability of the internet connection more than the programs themselves. Remember, however, that mediation is highly confidential and recording it is strictly prohibited. Rules like these are more of a firewall to protect the security and confidentiality of all participants.

In our experience conducting remote mediations, we’ve observed that attorneys and clients become more comfortable once they begin the process and realize it’s not as daunting as it may seem. But still the question remains: is remote mediation truly effective? Can the parties really be engaged when they’re not all in the same place?

The answer is yes, provided that all participants observe some basic ground rules:

• Everyone should take reasonable steps to minimize distractions. Find a quiet room in your home or business that will serve as a distraction-free zone. It needs to be a place where you can close the door to ensure privacy. Don’t attempt to do other work, use social media or other technology, or allow interruptions during the mediation.

• Body language is a key variable in mediation. Other participants need to see you so they can trust the process. In real life this is a given, but it shouldn’t be sacrificed in the remote setting. Thus, all participants should join by video and not rely on audio only and while actively participating, should remain seated in front of the camera, not standing, walking around the room, or off camera. Of course, there are many breaks during the mediation process that will allow for movement away from the camera as long as the volume is on so that the parties can hear when they are needed.

• Pick a room with a wall behind you, not a window. A window can create distracting backlight and make it difficult for other participants to see you. Everyone must be able to see everyone else for remote mediation to succeed.

• All mediation participants must be disclosed ahead of time, which means having any unauthorized third parties in the room is strictly prohibited. The parties will have agreed to this basic rule in advance, and it will be rigorously enforced.

• All participants must be available at all times throughout the mediation. In other words, the experience needs to be as close to real life as possible. Participants should not be taking phone calls, stepping out of the room, or otherwise unavailable. Even though you are in a private room, behave as if your boss could walk in unannounced at any moment.

Here at GaffneyLewis, LLC, our approach to mediation has adapted to meet the needs of the attorney and parties we serve as we continue to navigate the coronavirus pandemic. We are proud members of the National Academy of Distinguished Neutrals and our objective is to ensure that the attorneys and their clients get the most possible out of remote mediation. But we recognize that not everyone is familiar with the process and may still have questions about it. We encourage you, if mediation is in your near future, to give us a call to learn more or schedule with our certified mediators online at https://nadn.org/regina-lewis and https://www.scmediators.org/amy-gaffney.

Ten months ago, no one thought we would still be in the midst of a pandemic and trying to persuade our employees to wear masks and wash their hands until they resemble crocodile skin. Yet, here we are, and we must lead our employees out of the COVID funk that has settled on the world. “How,” you ask?

Connect with them. Start with empathy instead of impatience. Let them hear from you – that you are also weary of everything that comes along with COVID, you are also frustrated, you also want life to go back to “normal,” you would also like to have skin on your hands, you also want to see their entire faces and warm smiles. Then explain why you are committed to wearing a mask, to appropriately physically distancing from others, to cleaning the workspace, to washing your hands. You are committed because it protects them and their families. You know that they also want to protect their co-workers and their families.

Speaking of connection, if your employees are working remotely and feel disconnected, brainstorm fun ways to connect. Bonus points if the fun helps you get to know more about each other. Keep it work appropriate though. For example, I do not recommend “Pajama Mondays.” To the contrary, this is an opportunity for people to put on their outside clothes for once. You can also let employees know when you are hosting a Zoom meeting where it is okay for kids and pets to pop up. You could challenge employees to come up with their own connection ideas and choose a winning idea monthly. Here are some fun connection ideas our creative Firm Administrator, Michelle Holmes, implemented:

🤡 Each employee submitted a photograph of their pet, Michelle created and distributed a pdf of the pets, and each employee had to match the pet with the appropriate owner/servant of that pet. The winner won a gift card to a pet store.

🤡 Before a scheduled firm Zoom meeting, Michelle mailed out colored glasses. The reason for the glasses was a mystery to us, but we were instructed to wear them for the meeting. At the meeting we learned we were wearing them in support of a client’s charitable cause. After learning about that cause, we took a screenshot of the Zoom video and forwarded it to our client to show our support.

Next, highlight any positive changes you have made because of COVID. The most obvious example is if you realized employees could work remotely and still effectively perform their jobs. If you plan to continue allowing some level of remote work post-COVID, you might let your employees know of that decision. If you are one of the businesses though that needs your employees at the physical work site, finding positives might be more difficult. Maybe you improved your technology this year, which makes employees’ work easier, or you might have improved the office ventilation. Everyone loves breathing cleaner air. Perhaps your employees were pushed into being more patient or thoughtful, and now have a stronger team. Perhaps you have more flexible work hours that employees enjoy and can become a permanent option. Whatever are the successes, celebrate them.

What if your employees argue their freedom comes first and, anyway, COVID is not real, or at least not serious? First, do not argue with them. In fact, maybe you personally agree with them, but you have regulations and protocols to enforce. It is best to refrain from engaging in conversation about these beliefs at work. Whether the opinions are born from political or religious beliefs, you are about to get into a conversation that makes lawyers squirm. If you want to save your money, do not have these conversations. Just acknowledge that your employee has the freedom to his own opinions about COVID (mind your tone here if you do not agree with him) and ask him if he is willing to put those aside to help you create a harmonious workplace. Do not use the word safe because he thinks it is already safe. If you have a good working relationship, he will want to help you. If he refuses to comply with the protocols, then you need to call the GaffneyLewis employment law team to assist you.

Be on the lookout for our next blog post on COVID vaccinations coming out soon.

In a recent employee handbook case, Crenshaw v. Erskine College, the South Carolina Supreme Court departed from a long line of precedent without the slightest acknowledgment of doing so.

A jury awarded a tenured professor $600,000 after his employer, Erskine College, terminated his employment in breach of his contract.  The contract was created by mandatory language in a Faculty Manual.  The trial court overturned the verdict, ruling the employer did not breach its contract with the professor.  In a 3-2 decision, with Chief Justice Beatty and Justice Hearn dissenting, the Supreme Court affirmed the trial court’s grant of judgment to the college and held that, as a matter of law, a Faculty Manual constituted an employment contract between the college and its tenured professors.  Nevertheless, the college did not breach the employment contract and the termination of the professor’s employment was lawful.

The majority of the opinion discusses the terms of the contract, the effect of tenure on the Court’s analysis, due process, and whether the college breached the contract in the way it handled the professor’s termination of employment.  The most startling part of the opinion is, however, the Court’s discussion about whether the Faculty Manual created a contract of employment despite the Manual’s conspicuous at-will disclaimer.  “In this case, the Faculty Manual states conspicuously at the bottom of almost every page, ‘This is not a contract of employment.’”  The Court stated, “Erskine refused at trial to concede the Faculty Manual is a contract, and continued its refusal to concede the point until we forced it to do so at oral argument before this Court.  We hold Erskine’s Faculty Manual is a contract with its tenured professors as a matter of law.”

The Court does not mention South Carolina’s at-will disclaimer statute, S.C. Code 41-1-110, or explain how a handbook that contains a conspicuous disclaimer was held, as a matter of law, to constitute a contract of employment.  Because the Faculty Manual’s “conspicuous disclaimer” did not comply with the statute’s requirements to be considered conspicuous as a matter of law, a history lesson is in order.

Prior to the South Carolina legislature enacting § 41-1-110, the South Carolina Supreme Court held employee handbooks created contracts of employment when the handbook set forth procedures binding on the employer because they contained mandatory language and the handbook did not contain a conspicuous disclaimer.  Although the presence of mandatory or promissory language and a non-conspicuous disclaimer created a factual issue for a jury to determine, a court was to resolve, as a matter of law, whether the employee handbook constituted a contract when the handbook’s policies and disclaimers, taken together, established that an enforceable promise did or did not exist.  For example, if a handbook contained a conspicuous disclaimer, the employee handbook did not create an employment contract as a matter of law.  Moreover, at-will disclaimers were conspicuous as a matter of law where the disclaimer was placed in a prominent position and was in bold, capitalized letters.

In 2004, the South Carolina legislature, with push from the business community, enacted the at-will disclaimer statute, § 41-1-110, which provides:

It is the public policy of this State that a handbook, personnel manual, policy, procedure, or other document issued by an employer or its agent after June 30, 2004, shall not create an express or implied contract of employment if it is conspicuously disclaimed. For purposes of this section, a disclaimer in a handbook or personnel manual must be in underlined capital letters on the first page of the document and signed by the employee. For all other documents referenced in this section, the disclaimer must be in underlined capital letters on the first page of the document. Whether or not a disclaimer is conspicuous is a question of law.

Thus, an at-will disclaimer compliant with this statute is supposed to prevent litigation over whether an individual employee handbook created an employment contract.  Cases have continued to be litigated in recent years where the disclaimer was not compliant with the statute or where the handbook was published before the statute’s enactment even though the employee was hired after 2004.

The Court has previously held judgment as a matter of law is inappropriate where a handbook or manual contains a non-conspicuous disclaimer and mandatory policy provisions.  Recognizing that, the Court in Crenshaw stated, in dicta, that the question of whether the Manual was a contract may need to be submitted to a jury in cases involving non-tenured faculty and non-faculty employees.  The Court appears to have decided the existence of a contract did not need to be submitted to a jury because the professor was tenured.

Because the professor was tenured, the Court’s analysis was distinguishable based on the promises inherent in the granting of tenure.  “Tenure – by its very nature – is a promise.”  The college’s granting of tenure to the professor was an offer to fulfill the promises set forth in the Manual, and he accepted that offer through his continued performance as a tenured professor.  The Court opined that the promise of tenure left the Court with “no doubt that the Faculty Manual is a contract” and warned that “[t]he role of the granting of tenure in our analysis of whether the Faculty Manual is a contract with tenured faculty probably renders this analysis inapplicable in any other context.”  (emphasis added)

In the dissent, written by Justice Hearn, the Court criticized the majority’s decision that the Faculty Manual created a contract of employment because:

the existence of the contract and the terms of that contract were issues for the jury to determine, not this Court. Erskine maintained throughout this litigation, including during the trial, that the Faculty Manual did not create a contract of employment.  Given Erskine’s continued insistence that the handbook did not constitute a contract, the trial judge had no alternative but to let the jury determine whether a contract existed.

Justice Hearn discounted the effect of the tenure policy in its Manual, stating the inclusion of that policy did not necessarily transform the Manual into a contract.

In essence, the majority found there was promissory language – a tenure policy – and a conspicuous disclaimer.  Instead of following its own precedent and holding no contract of employment existed, as a matter of law, the Court held the Faculty Manual constituted a contract of employment as a matter of law.  Even though the dissent takes issue with the majority not following precedent, the dissent appears to do the same, stating the decision should have been in the hands of a jury.

The Takeaways:

1. If the majority found, as a matter of law, that the disclaimer was conspicuous, as it stated, then the Court’s analysis should have stopped there with a ruling that the Faculty Manual did not create an employment contract.  Thus, in using the term “conspicuous,” did the Court not mean conspicuous as a legal term of art in handbook cases?  Or are we in a new world where a handbook can contain a conspicuous disclaimer and still be held to have created a contract of employment, thus limiting the employer’s ability to lawfully terminate an employee’s job?

2. Even though the majority opinion states it “probably” applies only to tenured faculty cases, it left open the door for an argument that another type of promise, other than tenure, could override the finding of a conspicuous disclaimer and cause an employer’s handbook to constitute a contract of employment.

3. Employers need to ensure all handbooks, manuals, and other documents contain an at-will DISCLAIMER that complies with the statute.  Employers should not rely on the inclusion of a compliant disclaimer but should continue drafting policy language in permissive, rather than mandatory, terms.

Drafting or revising handbooks and policy manuals in compliance with statutory and case law is complicated. If your business needs help doing so, or with assessing whether the company’s handbook needs an overhaul to begin with, contact the employment lawyers at GaffneyLewis.  We’ll make your business our business.