ADR and Independent Contractors

¶ … Grocers, Inc. Situation Good Grocers is an expanding, up-and-coming new company that needs to preserve its reputation in the competitive grocery industry. As a company which is particularly anxious to promote itself as an ethical organization given its pro-organic and buy-local stance, it must be especially careful to safeguard its positive image in the mind of the public.

Given the company's need to avoid a costly lawsuit, alternative dispute resolution would be advised as the best way to deal with the angry customer who claims to have stepped on a banana peel and injured herself. Alternative dispute resolution would be a less publically embarrassing and also a more attractive option for both the company and the aggrieved customer. "Alternative Dispute Resolution ('ADR') refers to any means of settling disputes outside of the courtroom. ADR typically includes early neutral evaluation, negotiation, conciliation, mediation, and arbitration.

As burgeoning court queues, rising costs of litigation, and time delays continue to plague litigants, more states have begun experimenting with ADR programs" ("ADR," 2015). Alternative dispute resolution can involve mediation between the two parties with a hired, professional mediator agreed. It is less costly and more efficient than litigation. Arbitration is a more formal process: "To comprise a panel, either both sides agree on one arbitrator, or each side selects one arbitrator and the two arbitrators elect the third.

Arbitration hearings usually last between a few days to a week, and the panel only meets for a few hours per day. The panel then deliberates and issues a written decision, or arbitral award" ("ADR," 2015). But in both mediation and arbitration there is no public record of the dispute, which is very important for Good Grocers.

Given the attitude of the woman's husband (his reference to the fact that his wife was a news anchor and his immediate reaction to sue), it seems as if the man was intent upon making trouble rather than really concerned about his wife being seriously hurt. Also, his wife was wearing five-inch heels which clearly contributed to the fall. The banana peel was on a ribbed mat which suggests the store did due diligence to protect customers from slip-and-falls.

Negligence is established in the presence of a duty to care for others; a breach of that duty; an injury to the aggrieved party; and monetary losses to the injured (like medical bills) (Calisi 2015). The store did its duty by using protective mats and although there was an injury and loss it was likely linked to the woman's shoes rather than to the peel.

The customer has a responsibility to protect him or herself in terms of what he or she is wearing; the store did not engage in negligent conduct (as would be the case if they had left an unmarked puddle of slippery, soapy water or failed to shovel a walk with snow on the ground). Given the ambiguity of the situation, the couple would be ill-advised to bring the case to court.

The weakness of their case means that ideally, with a mediator, Good Grocers could offer them a small settlement or even free groceries as a token. If the case went to court the couple would almost certainly lose, but the loss to Good Grocers in terms of its reputation and the time and money involved in litigation is costly enough to suggest that the grocery make some sort of gesture to the customer to placate her.

Good Grocers would still have to establish the lack of a likelihood of the footing causing the slip which might require expert witnesses and other costly aspects of defending itself in a lawsuit. These would not necessarily be required in ADR. Situation 2 There are a number of factors which are ambiguous regarding the nature of being an independent contractor under the law. According to the IRS, there are three general common law factors which determine if an individual is an independent contractor or not.

The first is behavioral: "does the company control or have the right to control what the worker does and how the worker does his or her job?" ("Independent contractor," 2015). In the instance of Ms. Greene, she is decorating cakes for the bakery. Unlike her own bakery business, she is presumably decorating the cakes under the determination of the company, not by the customer's order, nor is she exercising her artistic discretion upon the cakes in her work.

This suggests that although she functions as an independent contractor in her own business context, she is also technically working a part-time job for the bakery. The second common law consideration for the bakery is a financial one: "Are the business aspects of the worker's job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)" ("Independent contractor," 2015). In this instance, Ms.

Greene is not using her own supplies but rather the supplies of her employer on the premises (such as icing, frosting, piping tubes, and cake toppers). Once again, this suggests that she is functioning more in the capacity of someone working a part-time job at the bakery rather than as an independent contractor. The third consideration is that of the specifics of the type of relationship. "Are there written contracts or employee type benefits (i.e.

pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?" ("Independent contractor," 2015). It is here that Ms. Green's claim is problematic. There was no specified agreement between Ms. Greene and the company that she would function as a part-time employee. Only Ms. Greene seems to think so. Her contract seems to have been solely devoted to cake decorating. Arguably, this is not a critical aspect of business since her duties simply include decorating, not baking cakes.

Also, she is not scheduled to work regular hours but rather comes in for a few hours three days a week to decorate and occasionally works longer hours on weekend if the company is short-staffed. Overall, although the case is not clear-cut, Ms. Greene's argument, in the absence of a previously established business contract specifying that she is a.