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'Injunctive' elements can drive settlement

Thu, Jan 28th 2010 12:00 am
In the initial stages of negotiation, lawyers often begin with an offer. Dispute resolution usually begins with exchanging information about the needs of each party in order to search for creative solutions.

In advocating for your client's interests, building a relationship with the other side is important, since the parties may have some joint interests. Exploring interests that are non-monetary traditionally has fallen under the heading of injunctive relief, and in a first client interview should be discussed and documented.

For example, some of the interests and requests that have come up in my discussions with clients include:

• Recognition for work done

• An apology after they feel they have been lied to

• To be treated with respect

• Coverage for health care

• A safe place to live

• Avoiding media attention

• Avoiding future financial stress and job loss

• Preventing the same thing from happening to someone else

• For a supervisor or co-worker to get psychological treatment/counseling

• To feel valued at work

• Not having to deal with pornography at work

In a recent case heard before the New York State Division of Human Rights, my client secured not only a monetary award, but also a significant remedial order mandating that the employer establish policies to prevent unlawful discrimination, create a reporting mechanism for employee complaints, and develop and implement training programs.

In the case, Laura L. Pizzo v. Ferguson Enterprises Inc., the complainant demonstrated that she was subjected to a sexually charged work environment during the two years she worked for the respondent company.

This client took satisfaction from the fact that effective policies would go into effect as a result of her actions, and that other employees might be spared what she endured. The ripple effect of the ordered injunctive relief is where the prevention begins, and that was what she wanted from the first consultation.

The value of understanding a client's interests can guide an attorney to seek a custom-made solution rather than a one-size-fits-all result.

As the psychologist Abraham Maslow stated, "If all you have is a hammer, everything looks like a nail."

Those of us who seek to understand parties' interests as well as the positions they take can see the value of many different types of remedies.

Lindy Korn is a Buffalo lawyer with a solo practice and CEO of Diversity Training-Workplace Solutions Inc. She can be reached at lkorn@diversitytraining.com.