Vivian Berger Mediator

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Selected Articles on Mediation, Employment, and Civil Rights

What Happens After Mediation “Fails”? A Personal Account
NYSBA Labor and Employment Law Journal
June, 2021
I have been a mediator for more than 35 years. Like many in my day, before mediation became as popular and widespread as now, I received my first training at a community mediation center. The cases I handled, as a volunteer, were not commercial and did not require a law degree; ordinarily, the parties came unrepresented.. More ...

Book Review:
RIGHTS ON TRIAL: How Workplace Discrimination Law Perpetuates Inequality
NYSBA Labor and Employment Law Journal
June 22, 2018
If I had a friend whom I wished to discourage from suing her past or present employer for discrimination, I would urge her to read Rights on Trial. A better antidote to litigation romanticism in this domain would be hard to find. More ...

Winners and Losers: Employment Discrimination Trials in the Southern and Eastern Districts of New York: 2016 Update
NYSBA Labor and Employment Law Journal | Spring 2017 | Vol. 42 | No. 1
In 2012, the author published an article entitled Winners and Losers: Employment Discrimination Trials in the Southern and Eastern Districts of New York. The genesis of the study was scholars' and practitioners' widespread perception that employment discrimination plaintiffs have a difficult row to hoe. They fare poorly, both as compared with plaintiffs in other types of action and absolutely — losing much more often than winning. This is true at all stages of litigation: pre-trial, trial and appeal. More ...

Sexual-Orientation Harassment Suits Need Supreme Court's Review
Congress has failed to make such conduct actionable. The justices should step in.
Special to The National Law Journal
May 16, 2016
Judge Katherine Polk Failla of the Southern District of New York on March 9 decided Christiansen v. Omni­com Group, a case involving a complaint by a homosexual man that his supervisor had harassed him incessantly because of his sexual orientation. Among other things, Christiansen's tormentor drew pornographic pictures of him, referred to him as "the gay guy," and alluded to his HIV-positive status. Notwithstanding this extreme conduct, the court reluctantly dismissed his claim made under Title VII of the Civil Rights Act of 1964.   More ...

Consistent Reform Needed to Block Credit Checks in Job Applications
Special to The National Law Journal
June 29, 2015
Cook County, Illinois, which includes Chicago, and New York City passed ordinances in May that generally bar the use of a person’s credit history as a criterion for hiring and other employment decisions. These enactments are significant, as they represent determinations by the second largest county and largest city in the country to address a major social problem. Ten states have similar statutes.    More ...

A High Court Clash Over Religion in the Workplace
Standard requiring employer to have 'actual knowledge' of need for accommodation is too rigid.
Special to The National Law Journal
January 19, 2015
The establishment and free-exercise clauses as well as statutes governing religion have proven a fertile breeding ground for litigation. Increasingly, the workplace setting has given rise to such disputes. Sometimes they pit observant employers against employees who wish to be free of coerced religious activities. More often, however, they involve employees, current or prospective, who require accommodations for their own religious practices.   More ...

They’re Human, Too: The Care and Feeding of Defendants in Employment Mediations
Labor and Employment Law Journal: Winter 2014 | Vol. 39 | No. 1
At a recent training for mediators handling employment cases, the materials contained an introduction setting forth the two sides’ perspectives on mediation. The employer contribution led off as follows:   More ...

Pregnant Workers Need Legal Protection
Special to The National Law Journal
July 14, 2014
The stories are legion. A pregnant woman under a medical lifting restriction is denied light duty by her employer. Another employee requests to leave an hour early for a prenatal doctor's appointment; in response, her boss fires her. Still others cannot obtain temporary, often minor, adjustments to their working conditions like a stool to sit on, permission to carry a water bottle, more frequent eating and bathroom breaks, an indoor assignment during a heat wave and flexible hours. It goes without saying that more significant accommodations to problem pregnancies (for example, a threat of miscarriage requiring several weeks of bed rest) will yet more often be met with intransigence.   More ...

Deep divisions over symbolic boundary
Special to The National Law Journal
April 8, 2013
Few other than Orthodox Jews would recognize the word "eruv." Fewer still would recognize its physical embodiment — let alone comprehend its function. But when proponents ask a town for consent to erect one, controversy at times erupts.   More ...

Test case on discriminatory mortgages
Special to The National Law Journal
January 14, 2013
On October 15, 2012, a private law firm, the American Civil Liberties Union and the National Consumer Law Center filed a potentially path-breaking class action against Morgan Stanley.  More ...

Punitive Damages in Employment
Discrimination Cases: Myth or Reality?

NYSBA Labor and Employment Law Journal
Fall/Winter 2012
Vol. 37 No. 3
As a mediator specializing in employment disputes, most of which involve discrimination charges, I fairly often receive assurances from plaintiffs' lawyers that their clients are very likely to receive substantial punitive damages if the matter goes to trial. A number routinely include in their pre-mediation submissions a laundry list of employee-dream, employer-nightmare punitive awards. Rarely is any attempt made to compare the facts of the case at hand with those of the cases yielding a jackpot.   More ...

Plan: 'pick off' plaintiff to scuttle collective action
Special to The National Law Journal
December 3, 2012
On December 3, the U.S. Supreme Court is hearing argument in Genesis Healthcare Corp. v. Symczyk. The case involves an uneasy juxtaposition of constitutional law and the Federal Rules of Civil Procedure in a suit based on a major statute, the Fair Labor Standards Act (FLSA). At first glance, it appears to raise merely an arcane jurisdictional issue under Article III in the setting of a representative action. On closer examination, however, Genesis poses a serious challenge to the viability of group litigation to enforce important workers' rights to minimum wages and overtime pay. Thus, employee and employer advocates will be watching the matter closely.   More ...

New voting restrictions: solution to a nonproblem
Special to The National Law Journal
July 16, 2012
One would think that in a nation where so many citizens do not vote — 75 million eligible people in 2008 — legislators would spare no efforts to increase exercise of the franchise. Indeed, much of post-Civil War history has witnessed the toppling of formal barriers to voting: African-Americans, women and later 18-year-olds gained the suffrage; poll taxes and literacy tests were pronounced illegal. Over time, affirmative steps have also been taken to enhance the ballot's use and significance through measures ranging from declaration of the "one person, one vote" principle to passage of the "Motor Voter" law. But ominously, in recent years the tide has turned.   More ...

Winners and Losers: Employment Discrimination Trials in the Southern and Eastern Districts of New York

NYSBA Labor and Employment Law Journal
Spring 2012
Scholars and practitioners have long known that employment discrimination plaintiffs have a difficult row to hoe.  They fare poorly, both in comparison with plaintiffs in other types of actions and absolutely — losing much more often than winning.  That is true at all stages of litigation: pre-trial, trial and appeal.   More ...

The Mediator’s (Female) Gender: Irrelevant, Important, or In-Between?

April 2012
My answer to the question posed in the title is “all of the above.” Generally speaking, the best mediators have what I call the four Ps: Process skills, Preparedness, Patience, and Perseverance.   More ...

Sex-segregated public schools: illegal and unwise

Special to The National Law Journal
January 16, 2012
The past decade has witnessed a growing number of experiments in sex-segregated public education. Although the bloom may be off the rose — districts in Louisiana, Pennsylvania and Wisconsin recently decided to end, or not commence, such plans — they are scarcely moribund, despite attacks by the American Civil Liberties Union and resistance from mainstream feminist groups. Indeed, in 2011-12, more than 500 schools in 40 states are either wholly single-sex or furnish single-sex classrooms. Some proponents claim that these programs are needed to remedy the ills of urban educational systems.   More ...

Can civil rights be religious wrongs?

Special to The National Law Journal
September 19, 2011
On Oct. 5, the U.S. Supreme Court will hear arguments in a very significant case that pits a Lutheran parochial school's assertion of First Amendment rights against the claims of the Equal Employment Opportunity Commission and a fired teacher, Cheryl Perich, of violations of the Americans With Disabilities Act (ADA). The high profile of this suit, Hosanna-Tabor Evan­gelical Lutheran Church and School v. EEOC, is reflected in interest by third parties — 31 amicus briefs have been filed — and by the church's retention of Professor Douglas Laycock of the University of Virginia School of Law, a leading authority on religious liberty, to represent it.   More ...

Book Review
Bargaining With The Devil: When to Negotiate
, When to Fight
by Robert Mnookin
NYSBA New York Dispute Resolution Lawyer | Spring 2011 | Vol. 4 | No. 173
Treating conflicts as disparate as World War II and divorce, this fascinating book marries history with negotiation theory and practice. Written in a clear and lively style, it entertains as well as educates. Most important, it delivers on the promise of its catchy title. By the end the reader will have received invaluable aid on how to decide the perplexing question of whether to bargain with someone regarded as an enemy: an adversary “you don’t trust...whose behavior you may even see as evil.”  More ...

Foreclosure mediation: remedy or disappointment?

Feb. 21, 2011
The aspiration of home ownership undergirds American society. Until recently, most who attained it could expect to remain in their dwellings as long as they wanted and then sell them at a very substantial profit. But the current economic downturn has turned that dream into a nightmare. Foreclosures, which topped 1 million last year, are projected to rise by 20% in 2011; in 2009, Florida alone had almost 400,000 filings.  More ...

Get a Bigger Bang for For Fewer Bucks:  Pick Meaningful Numbers

Feb. 1, 2011
This is the moment the mediator dreads.  It is late in the day.  Tempers are rising; the general frustration level has soared.  The gap between the parties' numbers seems unbridgeable.  The corporate defendant emphasizes that it has reached the limits of its pocketbook — and its patience; the plaintiff has also dug in his heels.  Finally, one of the participants says what all are thinking: "We're getting nowhere.  Maybe we should just go home."  Simply put, impasse looms.  More ...

Victory for domestic workers

Special to the National Law Journal
August 23, 2010
On July 1, the New York State Assembly and Senate passed the landmark Domestic Workers' Bill of Rights. When Gov. David Paterson signs it, as he has committed to do, it will become the first such state legislation in the nation. As Colorado and California groups are already planning to push for a similar measure, the law may prove a bellwether for reform of household employees' lives.   More ...

Protect Afghan women

Special to the National Law Journal
May 11, 2009
The Afghan Constitution affirms a commitment to the Universal Declaration of Human Rights. In the United States, women and their advocates mount battles for fair treatment on the job. The law generally supports these efforts, although enforcement can be problematic. On the household front, married couples decide for themselves how they wish to order their affairs; the state maintains a hands-off stance. But if, say, a man assaults his wife or tries to imprison her in the home, she can seek legal redress. More ...

It Ain’t Over Till It’s Over: Fashioning Durable Settlements
Alternatives to the High Cost of Litigation
International Institute for Conflict Prevention & Resolution vol. 27 No. 3 March 2009
It’s 7:00 p.m., and after a long hard mediation, the case has settled. The plaintiff prepares to move on with his life. The defendant’s representatives, the lawyers, and the mediator promptly turn to their next task. And everyone breathes a sigh of relief—perhaps too soon. More ...

Respect in Mediation: A Counter to Disrespect in the Workplace
Dispute Resolution Journal
vol. 63, no. 4 (November 2008-January 2009)
Respect is a universal need. Unfortunately, its opposite, disrespect, can be found in many places of employment, from corporate board rooms to assembly lines. Work plays a central role in the lives of Americans; much of our sense of identity and worth, our self-respect, is determined by how well we are doing at work and how our co-workers and bosses perceive us. Yet, never before in recent years has the job environment been less hospitable to employees. More ...

Principal is scolded: Student had right to support gay classmates

Special to the National Law Journal
June 30, 2008
On Oct. 21, Heather Gillman received the Hugh M. Hefner First Amendment Award for her brave defense of the rights of homosexual students at her high school in the tiny Bible Belt town of Ponce de Leon, Fla. Nine months earlier, the then-11th-grader sued the school board and principal David Davis to end what District Judge Richard Smoak later described as Davis' "relentless crusade" to suppress speech declaring tolerance for gays and lesbians. More ...

Disability Discrimination

Special to the National Law Journal
June 30, 2008
On June 25, almost 18 years after enactment of the Americans With Disabilities Act (ADA), the House of Representatives passed H.R. 3195, the ADA Amendments Act (ADAAA), by a 402‑17 vote. According to its drafters, the U.S. Supreme Court had flouted congressional expectations that the ADA would “‘provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities,’”and establish a broad shield for its intended beneficiaries. The ADAAA, designed to reverse judicial inroads on the ADA, now awaits Senate action — and, one hopes, prompt approval by President Bush.   More ...

After the Handshake: Don't Let Settlements Evaporate
Fall/Winter 2007
It's 7:00 p.m., and after a long hard day's mediation, the case has settled. The employee prepares to move on with his life. The employers' representatives, the lawyers and the mediator promptly turn to what's next on their plates. Everyone breathes a sigh of relief — perhaps too soon.  More ...

ENDA Legislation: Half a loaf is worse

Special to the National Law Journal
November 19, 2007
The first bill specifically targeting job discrimination based on sexual orientation was introduced in Congress in 1996; it failed in the Senate by only one vote. On Nov. 7, the current version, H.R. 3685, the Employment Non-Discrimination Act of 2007 (ENDA), passed in the House, 235 to 184. The original ENDA, H.R. 2015, covered not only gays, lesbians and bisexuals, but also transgender individuals (collectively, GLBT): people whose "gender-related identity, appearance, or mannerisms" differ from their "designated sex at birth." The Democratic leadership pulled it in favor of H.R. 3685, which omits protection for transsexuals, cross-dressers and other employees with nonconforming gender identities. They did so because a head count showed they lacked the votes necessary to enact the more inclusive law.  More ...

Taxation of Damages: End the inequity
Special to the National Law Journal
April 2, 2007
House and Senate committees are considering the Civil Rights Tax Relief Act of 2007. The CRTRA would remedy anomalies in the treatment of damages obtained by employment discrimination victims and other civil rights plaintiffs, which disadvantage them by comparison with victims of physically injurious torts. A section of an earlier version, enacted in 2004, went part way toward rejecting this harsh approach by ending taxation of attorney fees to both the lawyer and the client. Congress should finish the job this session. More ...

Co-Op Board Rejections: Shed Light on Them
Special to the National Law Journal
Monday, June 25, 2007
Sunlight is the best disinfectant, Justice Louis D. Brandeis opined. On matters of political or corporate governance, progressive thinkers usually agree. But not necessarily where transparency would trench on the interests of co-operative apartment owners, as appears from the generally left-leaning New York City Council's failure to grant a hearing on a bill that would force co-op boards to reveal the reasons for rejecting would-be buyers' applications. More ...

Unaffordable Divorce

Special to the National Law Journal
April 2, 2007
The titles of myriad self-help books graphically convey the predicament faced by ordinary people seeking a divorce that they can afford. A minute's tour of reveals manuals like Breaking Up Is Hard On You: The High Cost of Divorce, How to File Your Own Divorce and Divorce Yourself: The National No-Fault No-Lawyer Divorce Handbook. More ...

Hostile Workplaces
Special to the National Law Journal
December 4, 2006
Worldwit, a network for women in business and technology, declared Sept. 4-8 "National Breastfeeding at Work Week." The organization's purpose was "to promote full participation and equality for nursing women in the workplace." Although some progressive companies provide mother-friendly environments, many more businesses do not. Regrettably, the courts uniformly reject suits under current federal statutes to ban discrimination against, or require accommodations for, new mothers on the job; and laws in a mere nine states address the issue in any way. Therefore, we need national legislation to ensure that female employees do not have to choose between earning their living and fulfilling a natural function that is not only personally rewarding but also socially beneficial. More ...

Faculty-Student Sex: Any Real Remedy?
The National Law Journal: Opinion
April 17, 2006
Sex on campus is as much a part of the learning experience as lectures, labs and research projects. Ideally, it involves romance between young people exploring their way toward adult roles. In reality, too often it constitutes the byproduct of a toxic brew of alcohol and ignorance, leaving at least one party (usually, the woman) feeling dissatisfied or imposed on. Perhaps some of these negative occurrences can be turned to positive use: College entails experimentation, and we expect that missteps teach students to avoid similar mistakes in the future.    More ...

Mediation: An Alternative Means of Processing Attorney Disciplinary Complaints
The Professional Lawyer
December 2005
Sources ranging from the Harris Poll to lawyer jokes reflect Americans' low level of confidence in, and esteem for, the bar. Regrettably, some attorneys do live up (or down) to their reputation.  The author evaluates the role of mediation in mending "broken" professional relationships.     More ...

Summary Judgment Benchmarks for Settling Employment Discrimination Lawsuits
Hofstra Labor & Employment Law Journal
Fall 2005
The number of employment discrimination lawsuits rose continuously throughout the last three decades of the twentieth century. In the federal courts, such filings grew 2000%, while the docket as a whole increased a mere 125%.      More ...

Domestic Violence: Don't Evict Victims
The National Law Journal: Opinion
June 6, 2005
On April 18, the Women's Rights Project of the American Civil Liberties Union, co-counsel with Vermont Legal Aid, announced settlement in Bouley v. Young-Sabourin (D. Vt. 2005), the first case in which a court had held that the Fair Housing Act bans discrimination against victims of domestic violence. Previous lawsuits had settled before resolution of this claim. The ruling, denying summary judgment to a landlady who allegedly evicted a young mother because her husband had physically attacked her in their home, amounts to a significant victory for women battered by their intimate partners.      More ...

Workplace Mediation: Nip Issues in the Bud

The National Law Journal
July 19, 2004
Workplace mediation of employment-related disputes is increasingly prevalent in the public and private sectors. Its use by the federal government has grown with the enactment of statutes mandating or encouraging recourse to alternative dispute resolution (ADR).      More ...

Naysayers Are Wrong: The Virtues of Mediation

The National Law Journal
May 12, 2003
Since the last quarter of the 20th century, alternative forms of dispute resolution (collectively known as ADR) have come to play an increasing role in the handling of conflict in various settings.... Nonetheless, opinions about the desirability of this development differ sharply. Myself a mediator, I believe the ayes have it — subject only to a few caveats.      More ...

Employment Mediation in the Twenty-First Century: Challenges in a Changing Environment

University of Pennsylvania Journal of Labor and Employment Law
Spring 2003
In recent years, two major changes have been taking place in the job environment. These involve the nature of the workplace as well as the nature of workplace disputes over claimed violations of anti-discrimination laws. Together, these changes have had a profoundly negative impact on the ability of litigation brought under Title VII of the Civil Rights Act of 1964, and similar statutes, to address job-connected complaints.     More ...

Civilians Versus Police: Mediation Can Help Bridge the Divide

Negotiation Journal
July 2000
The increasing frequency of notorious cases of conflicts between police officers and members of the general public is cause for alarm. A number of communities, including New York City, are turning to mediation to provide a forum for the potential resolution of complaints made against police by citizens. After a brief survey of the work of such programs nationally, the author focuses on three New York cases in which she served as a mediator; using them to illustrate the pitfalls and special rewards of mediating in this context.     More ...