The plaintiff sued the defendants for breach of contract with regards to trade secrets in shoe designers. The accused persons who were its former designers deleted confidential information from their work devices before returning them contrary to Nike's policy. Also, they all joined Nikes rival Adidas as designers planning open a design studio in Brooklyn. Nike further alleged that the defendants actions will to open a studio would result in irreparable harm. They accused the defendants of breach of the duty of good faith and fair dealing, violation of the duty of civil conspiracy, loyalty misappropriation of trade secrets and tortious interference with existing and future contractual and economic relations. Nike sought compensation of damages up to $10 million.
Recommend steps for conflict management based on case study.
Conflict results due to different opinions by the interested parties; it involves the process of disagreement, with usually one party perceiving that their interests are infringed. The conflict has a dysfunctional effect to both a person and a corporation. Alternative dispute resolution mechanisms are used to resolve conflict, and they include mediation, arbitration, and negotiation. Mediation is a voluntary, non-binding carried out in public or private whereby a neutral party, mediator assist parties to a dispute to settle. The voluntary aspect of mediation means that the parties must agree to the procedure and process. This section shall discuss the steps for conflict management using the case study as an illustration.
It is important for all employers especially those said to be in business lucrative business to sign employment agreements with their employee. The contents of the contract should not only disclose the duties and rights of either of the parties but should also provide exit avenues in case either of the parties wants to leave. Also, the employer should protect their trade secrets by stating what is expected of the employee through restrictive covenants.
Non-completion clauses prevent an employee from working for companys competitors in a similar role. The term intents to protect the taking of confidential information to a competitor for a period following termination or resignation. The provision also prevents the employee from setting up the similar business. The defendants are alleged to have left Nike for Adidas, a key competitor to the plaintiff, besides their new roles, resembles the one they occupied at the Nikes. Before the conflict, Nike should have included a non-competitive clause, stating the exact period the defendants are expected not to work for their competition in the designer roles.
Restraints of trade protect the trade secrets, confidential information, and customer connections of an employer. A restraint of commerce is enforceable to the extent of the control necessity on a reasonable ground to protect the legitimate business. The remedy for restraining is an injunction preventing the employee from acting in a way that breaches the contract with the former employer (Arup et al., 2013). For example, with the existence of a restraint of trade, Nike can issue an injunction to prevent the former employees from working for Adidas or disclosing confidential information.
How does the mediator's behavior style help or hinders the formal mediation process?
Expectedly mediation should be an impartial process that allows the parties to agree to a negotiable outcome for their dispute. The role of the mediator is to facilitate co-existence of the offering guidance whenever required. In discharging his/her duties, a mediator may employ a facilitative, transformative, and evaluative styles. Despite using the techniques above neutrality of the mediator before the parties are important is not only to reach a just outcome but also to quicken the process.
The facilitative style is characterized by the mediator structuring a process to assist the parties to arrive at a mutual solution; for example, the facilitator asks questions seeking validation. Therefore, the mediator using this style in in charge of the process, while the parties are in charge of the outcome based on the information and understanding. An evaluative mediator, on the other hand, assists the parties to reach the result pointing out the weakness in their respective cases and offering a prediction of the likely outcome. More concerned with the legal rights of the parties, their evaluation is based on the legal principles of fairness and justice. Devised by Folger and Bush transformation mediation empowers each, recognizing their interests and needs, allowing them to determine the direction of the process.
Repeatedly, the style employed by a mediator in the mediation process has been a question of concern for most parties. The facilitative style is considered a classic approach to negotiation based on the principles of self-determination and neutrality of the third party. It is for this reason that most disputing parties would want the mediator to state the style they shall employ to avoid room for assumptions and discomfort (Stulberg, 1997). Ordinarily acceptable, the facilitative style, asking questions, summarizing the discussion and offering directions, assist the parties to illuminate their views and interests. In the process, therefore, the parties can reach an agreement by understanding each others needs at the same time preserving the neutrality of the mediator. For an active mediation process, the mediator must remain neutral in the eyes of the parties.
In the evaluative style, the mediator roles include fact-finding through analysis of evidence, assessing credibility and allocating the burden of proof, applying the relevant law, and rendering the opinion. All these duties divert the mediator for the facilitator role and tending to compromise the mediator neutrality in the eyes of the parties (Riskin, 1994). When faced with the evaluation style parties are prone to take a positional approach rather than a collaborative approach to the mediation process for example not disclosing all information.
The transformative style mirrors the facilitative approach which avoids the mediator directness putting the responsibility of pursuing the outcome on the parties. The method restores the process to the disputant's value and capacity gaining clarity on their preferences allowing them to deliberate their decisions (Bush & Folger, 1994). This style assumes that the dispute is a time for moral growth, therefore, allowing the parties recognize their adversaries further allowing reconciliation. Therefore, the mediator style of mediation not only hinders the process but also predicts the nature of the outcome. Both the transformative and facilitative techniques allow the parties to dictate the outcome, with the mediate in charge of the process.
Recommend steps for resolution
Before the mediation process begins either of the parties must agree to subject the matter to the process, choose their mediator and decide on the location for holding the mediation proceedings (Bush & Folger, 1994). Information concerning the cause of conflict is essential to the start of the mediation process. For the case study purpose, the contractual agreement between Nike and the defendants is necessary; a deeper understanding of the non-disclosure agreement signed (if available), and Nikes policy on data in devices allocated to its employees. Each party is allocated time to present information and evidence. The following are steps in the mediation of the case study: -
a. Opening statements
Once seated, the mediator makes an opening statement introducing everyone, further explain the goal of the mediation process encouraging either of the sides to work towards an agreeable solution.
b. Disputing parties opening statements
Each party makes a presentation of their side of the argument in question how they have been affected by it. For example, Nike will present its issues such as breach of the duty of good faith, misappropriation of trade secrets and violation of the duty of civil conspiracy.
c. Joint negotiations
Once familiarized with the issue at hand, the disputants are expected to discuss freely, finding out the issues that need to be addressed to resolve the conflict. The mediator engages each of the party to participate in the discussion.
d. Private sessions
Having the chance to meet privately with the mediator, the disputants give their opinions on the issues; they provide suggestions on how to resolve the dispute. They are also allowed to state their position. These sessions may be held once or as many times as it is necessary to conclude. In the process, the mediator takes notes and provides guidance whenever needed.
e. Joint discussions
After the private sessions, the mediator brings the disputants discuss having a direct dialogue with their opponents.
f. Closure of the process
Where an agreement has been reached the mediator puts it in writing the parties may be required to sign on each side of the summary agreement or take it to their attorneys for review. In instances where no agreement has been reached the mediator will review the progress report of the process advising each of the parties on their options, for example, going further with the process of arbitration, or going to court.
Arup, C., Dent, C., Howe, J., & Caenegem, V.W. (2013). Restraints of Trade: The legal practice. UNSW Journal, vol 36(1).
Bush, R, &Folger, J.P. (1994). The promise of Mediation. Jossey-Bass.
Riskin, L.L. (1994). Mediator orientations, strategies and techniques: Alternatives to the high cost of Litigation, 111.
Stulberg, J.P. (1997). Facilitative versus Evaluative mediator orientations: Piercing the Grid lock. Florida State University Law Review 985 at 01.
Nike Inc. v. Dennis Dekovic et al., No. 14-cv-18876
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