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October 2026 Welcome Welcome to readers of Making the Connection!    In this issue, you will find:  In Focus : Mediation is a Forward-Looking Process Question of the Month, discussing the NFL's personal conduct policy Case On Point, interpreting the Portal-to-Portal Act At the Podium, listing my speaking engagements and public appearances In Focus Mediation is a Forward-Looking Process Litigation and arbitration are backward-facing processes. If a case goes to a trial or hearing, the judge, jury or arbitrator will determine whether the defendant or respondent breached a contractual or other legal duty to the plaintiff or claimant, and whether the plaintiff is entitled to damages, an injunction or some other remedy as a result.  Mediation, on the other hand, is a forward-looking process.  There is no adjudication of fault or determination of damages. Rather, the question to be answered is whether the parties can reach a mutually acceptable resolution of their conflict to avoid having to go to a trial or hearing to have it adjudicated. The merits of the parties' positions on liability and damages may still be relevant to evaluating the value of a case and considering whether a proposed settlement is preferable to the likely outcome of a lawsuit or arbitration, taking into account the risks and costs involved. However, they are not determinative, and the parties are free to consider other factors they think are relevant, such as the need for or benefits of closure or reconciliation.  Question of the Month This month's question was posed by a reader:  Q: Can the National Football League suspend or discipline a player who has been accused of but not convicted of a crime? A:  Yes, NFL players, like many highly paid employees in the private sector, are subject to personal conduct policy or clauses prohibiting employees from engaging in violent, threatening, fraudulent or other dangerous behavior or illegal. The League conducts its own investigation, makes its own determination,  and imposes sanctions it deems appropriate.  It can utilize information and documents from a parallel criminal proceeding, and a conviction will trigger sanctions.  However, a player can be disciplined even if he has not gone to trial or was acquitted. Players are obligated to cooperate in the investigation, as the Fifth Amendment prohibition against self-incrimination does not apply.  In addition, unlike in criminal cases, violations of the policy do not require proof beyond a reasonable doubt.  Case On Point Santos v. Lidl (U.S. Ct. of App. for the 2d Cir. 2026) Plaintiff filed a class action against her employer for unpaid wages under the Fair Labor Standards Act. She alleged that employees were required to report to work fifteen minutes before the start of their shift, but that they often could not clock in until the scheduled start time of their shift because managers had not arrived to admit them to the store. She claimed that she and other class members were entitled to payment of wages for this fifteen minute period.  Lidl defended on the ground that waiting was a non-compensable preliminary activity under the Portal to Portal Act.  The Court of Appeals ruled in plaintiff's favor, holding that: Waiting time is compensable under the FLSA when an employer requires an employee to report to the worksite at a certain time to be ready to work and, for reasons beyond the employee’s control, there is no work to be done.   At the Podium This is a listing of speaking engagements, workshops, events and other public appearances.  To book me as a speaker or facilitator at your next company, client or association function, contact me at lisa@lisapom.com.          On October 29, 2026, I will speak on Dealing with Hidden Conflicts in Mediations and Arbitrations at the 2026 virtual Annual Conference of the Association for Conflict Resolution. Information and registration are available at www.acrnet.org.  © 2026, Lisa Renee Pomerantz. All rights reserved.

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