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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 (ADR).

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 actual bias.

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.