Home « Mediation, Employment, Civil Rights « Workplace Mediation
Nip Issues in the Bud
The National Law Journal
Monday, July 19, 2004
orkplace 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
Some surveys have shown that non-government employers--over half
of large firms--offer internal ADR for good business reasons: to
nip in the bud problems that, if ignored, might bloom into litigation.
Mediation, a type of ADR in which a neutral facilitates talks between
parties in conflict without imposing settlement on them, forms
a linchpin of many such programs.
Employees as well as management stand to gain from dealing early
with grievances. At-will employment is the norm in this country.
And, apart from Title VII of the Civil Rights Act of 1964 and similar
anti-bias laws, workers lacking civil service or union protections
have very few enforceable rights. While courts and agencies can
handle only complaints within their jurisdiction, mediation on
the job need not be confined to charges of legal violations. Yet
many employers restrict mediation to claims of infringement of
equal-opportunity laws. These limitations are counterproductive.
First, encouraging aggrieved workers to view themselves as victims
of prejudice and their complaints as group-related--even in very
marginal cases-- threatens to diminish work force cohesion and
polarize the working environment. Complainants may actually suffer
most from having to fit their disputes into the Procrustean bed
of discrimination. Accentuating differences like race, ethnicity,
religion and sex may boomerang, causing resentment in co-workers
as well as employers. This approach also denies employees facing
nonbias-related issues the best forum for their resolution, and
can pit protected groups against each other.
Instead of promoting divisive inter-group comparisons, why not
permit workers troubled by a hostile environment, lack of advancement
or low pay to assert these claims directly? If mediation talks
reveal that some of the work force is, in fact, being disadvantaged
on a class basis, management has an obligation to right the wrong
for all affected employees. Thus, opening the door to every type
of workplace issue does not preclude dealing forcefully with any
Avoid inflammatory labels
Furthermore, attaching the label "discrimination" to
all workplace disagreements can greatly impede their resolution.
In a perhaps ironic tribute to the success of civil rights laws
in teaching that prejudice is truly wrong, individual defendants
are frequently outraged at being accused of conduct so condemned
by society. Since employees often enter mediation with very strong
negative feelings, which need to be alleviated or redirected in
order to achieve settlement, adding employer anger to the stew
just exacerbates the problem--turning what might have been an easily
resolvable conflict into an intractable quagmire.
Yet another downside to a system that rewards interpreting run-of-the-mill
workplace squabbles as instances of discrimination is its tendency
to cause workers to ignore ways in which their own deficiencies
may have contributed to their predicament. Ready recourse to the
race (religion, ethnicity, disability, gender or age) card compounds
the human predilection to blame others for personal failings.
An employee who does not confront performance issues is one who
will never improve or advance. By the same token, a narrow focus
on defending against allegations of unlawful discrimination often
diverts the employer from addressing management conduct that--although
probably legal--was, nevertheless, ill advised. This blinkered
approach not only impedes constructive change but also may convince
the worker that the employer's sole concern is shielding itself
from liability rather than doing the right thing. Finally, to the
extent a charge of discrimination amounts to a conscious end run
around the strictures of the mediation program, the complainant
assumes the false position of making a claim that he or she knows,
or strongly suspects, is specious.
To be sure, an experienced mediator will try to unearth the parties'
real concerns and interests, not just those that fit within the
rubric of the stated complaint. But there is value, pragmatic and
moral, to "truth in charging." Access to on-the-job mediation
should not be conditioned on alleging unlawful discrimination.
Reserving that label for cases to which it might objectively be
applied should defuse the skepticism of those desensitized to potentially
valid claims of bias by the prevalence of unfounded ones.