Penn Payne is an experienced mediator of employment and commercial disputes. Over the past eight years, she has mediated approximately 60 cases, two-thirds of which were settled. Because she previously represented both employers and employees, and plaintiffs and defendants, she anticipates and understands, at an analytical and an intuitive level, the approaches and arguments of all parties in a mediation. She can then use that understanding to facilitate settlement.
Penn is known for her fairness and skill in obtaining the trust of each party. For example, she has successfully mediated sexual harassment claims brought against law firms and individual lawyers, despite the difficulties of mediating cases in which all or most of the participants were lawyers. Penn also mediates claims brought by employees through their company’s internal dispute resolution program, and she is often successful in facilitating settlement of these claims before they become EEOC charges, lawsuits or arbitration demands.
She has mediated cases involving all forms of employment discrimination and retaliation, based on race, sex (including pregnancy), racial and sexual harassment, age, disability, religion, ethnicity, national origin, and family and medical leave. The employees in these cases have claimed discriminatory or retaliatory discipline, termination, constructive discharge, failure to promote, failure to train, and physical and emotional harassment. Penn has also mediated state law claims of intentional infliction of emotional distress, invasion of privacy, negligent hiring and retention, and civil assault and battery, as well as claims involving covenants not to compete or solicit, trade secrets and confidentiality agreements.
Penn looks to create the optimum conditions for each mediation, in order to increase the odds that it will be successful. She believes that several factors help to create the optimum conditions: (1) the parties have exchanged a substantial amount of factual information, either through discovery or informally; (2) the parties have experienced the unpleasant realities of litigation, attorneys' fees and costs, loss of productivity, lost time from work, burdensome discovery, anger, frustration and anxiety - and are worn down by the process; and (3) the lawyers for the parties have maintained a reasonably civil relationship, even if their clients are hostile toward each other. She therefore takes steps to create or accentuate these conditions. In advance of the mediation, she urges the parties to exchange information informally if discovery has not already revealed the key facts. She asks the parties during the mediation to focus on all the events and costs that will occur if they do not settle. And she creates and enforces an atmosphere of civility, allowing the parties to "vent" but without personal attacks on one another.
Penn is on the American Arbitration Association’s panel of employment mediators and mediates disputes through that organization as an institutional administrator. The majority of her mediations, however, come through a direct referral from an attorney, and she handles them without an institutional administrator and without charging any administrative fees.
