How Mediators Manage Their Own Biases

Many people ask me how I can be a neutral mediator when I have firmly formed opinions on the laws, proper workplace behavior, and many other topics that are at issue when I mediate.  I have several answers to this question.

First, don’t assume that someone’s experience and background determine how that person will view the facts of any particular lawsuit.  I’ve found that my experiences often lead me to want to favor the employee in workplace mediations.  I was a manager for many years, and an attorney representing management for even more years.  But because I have opinions about how managers ought to manage, I am quick to judge them when they fail to live up to my expectations.  I need to control my urge to impose my standards on other people (as we all do in so many situations in life).

Second, what is most important for mediators is not whether they express their opinions, but that they are aware of their biases.  Only when they have this self-awareness can they decide what to do about their prejudices.  Most of the time mediators can put their biases aside, sometimes they can disclose their opinions, and let the parties decide whether to proceed, and occasionally mediators – if they do not think they can manage the process openly and fairly – should step away from the case.

Finally, as a mediator I know it isn’t my decision whether or how a case should be resolved.  I am not the judge or jury.  My job is to help the parties come to a resolution that they both agree is better for them than a trial.

I believe strongly in the value of mediation, so I can generally put my opinions aside.  When I think it will help the process, I will give my opinions to the parties (known as being an “evaluative” mediator), but if I can’t put my opinions aside when needed, I shouldn’t be mediating the case.

But in most situations, it isn’t necessary to give my opinion.  I can manage the process toward what the parties think is an equitable result, even if it isn’t the best result from my perspective.  If the parties are satisfied, then I must be satisfied also.

Have you had experiences with someone who was supposed to be neutral who didn’t seem to be?

Favorite Firings – First in a Series

Mitt Romney has taken a lot of heat in the last several weeks for saying he likes to fire people.  Some of his Republican primary opponents misinterpreted what he said, but Romney’s intent was clear:  He wants to be able to fire his health insurance company, if he isn’t happy with its service, just as he would fire any service-provider.

I don’t want to give the impression that firing is fun, any more than Romney did. Terminating someone’s employment is one of the most difficult tasks of management, as any good manager knows.  But sometimes firing an employee is the right action for the company, the department, and often even for the employee.

I’d like this to be the first in a series of occasional posts on “favorite firings” – stories about employee terminations that make you shake your head and wonder about the state of our workforce.

My purpose is to make you chuckle, but also to make you think.  Was termination the right thing to do in each situation?

Here is one of my “favorite firings”:

The Facts:  An employee claimed he had been injured at work, and he filed a worker’s compensation claim.  His doctor imposed lifting restrictions prohibiting him from lifting more than twenty pounds, which kept him from doing his job as a stock handler. Therefore, he was off work on disability leave.

Some of the man’s co-workers noticed his picture in the local newspaper, depicting him carrying a wild turkey – holding the dead bird out with one hand, his shotgun in the other hand, and a big grin on his face.  He had won the local turkey shoot competition, and the newspaper prominently reported the weight of his bird as thirty pounds – more than his lifting restriction. 

So, yes, this man was fired for lifting a turkey.

The Moral:  An employee’s behavior away from work can lead to serious workplace consequences.  More and more employees are disciplined, fired or refused employment because of Facebook or other social media postings and pictures, or other publication of their non-work actions.

It is unlawful for an employer to fire someone for filing a worker’s compensation claim.  But an employer can take action if the employee lies about his restrictions.

If you don’t want your employer to find out about something you’re doing, don’t let it be publicized anywhere.  Even if you won the turkey shoot.

* * *

If you have any ideas for stories of “favorite firings” to publish, please email me or leave a comment below.  But please disguise the facts to protect the innocent (and not-so-innocent) unless the situation is well-publicized, and then include a link to support your story.  Only verified stories will be published.

Employers Need L-1 Visa Flexibility

Employers that hire foreign nationals should be aware of a little publicized fact – the  U.S. Citizenship & Immigration Service (USCIS) is coming down hard on L and H1-B visa applications.  See a post at Greg Siskind on Immigration Law and Policy for more information.  The report Siskind references, “Data Reveal High Denial Rates for L-1 and H-1 Petitions at USCIS,” can be found on the National Foundation for American Policy website.

USCIS is issuing many more time-consuming Requests for Evidence to obtain additional information from visa applicants.  Ultimately, USCIS denies many of these applications.  Nothing has changed in the regulations, but USCIS is interpreting the regulations more stringently.

This, while the same Service ignores foreign nationals here illegally with children born in the U.S. 

I am not advocating the splitting up of families – clearly, we need comprehensive immigration reform in this nation that addresses many aspects of our immigration system.  But immigration reform should recognize the legitimate needs of businesses for foreign workers – particularly employees of their foreign affiliates. 

Much has been written about the need for more H1-B visas to bring in foreign workers with specialized knowledge.  L visas cover inter-company transfers – workers of foreign affiliates of U.S. companies.  L visas should be even easier to obtain than H1-B visas. 

Businesses should have substantial leeway to bring in foreign employees with knowledge of their business.  Employers know better than USCIS which of their foreign employees are needed here in the U.S.  They should have the flexibility to move workers between their affiliates.

We ought not penalize employers that are spending the time and money to bring their workers here legally, while ignoring other aspects of current immigration law.

Obamacare Regulations Prohibit Free Exercise of Religion

As a manager, I generally tried to keep religion out of the workplace. But in recent years I have consulted with religious employers about health care issues.  With religious institutions it is impossible to keep religion out of the workplace – that is their mission and reason for being.

In the summer of 2011 I had clients – institutions associated with the Catholic Church – that had to decide whether to change their employee health care plans for cost-saving reasons or to keep the plans unchanged to stay within the “grandfathering” provisions of the Affordable Care Act (ACA).  In order to control costs for themselves and their employees, these religious organizations decided to abandon any intent of remaining grandfathered.  If my clients had not made these changes, they would have faced double digit premium increases – which would have hit both their employees and the religious institutions themselves, limiting the social services they could provide to their members and to the public.

I told these institutions at the time that it was possible that the HHS regulations under the ACA might mandate birth control and other health care expenses contrary to their beliefs, and they would have to adopt these provisions or stop providing health care as an employee benefit.  Now, HHS and the Obama Administration have done exactly that in the regulations on mandated preventative health services for women.

HHS has mandated that non-grandfathered plans cover all FDA-approved contraceptive methods – including abortificants – and sterilization.  Not only must these services and drugs be covered, but they must be “free” to plan participants.  Although there is a religious exemption, it is exceedingly narrow, limiting the definition of a religious employer to non-profit insitutions that

• inculcate religious values,
• primarily employ persons who share its religious tenets, and
• primarily serve persons who share its religious tenets

Thus, my clients, who serve not only members of their own religion, but also members of other religions and even the non-religious, must violate their own tenets or stop providing health care to their employees and face fines under the ACA that would cause them to have to cease providing the social services that they see as part of their mission.

Requiring religious employers to cover health care expenses that go against their religious beliefs is morally wrong and legally untenable.  Both conservative and liberal commentators have expressed their outrage at the HHS position. 

On the PBS NewsHour on February 3, 2012, Mark Shields said:

what President Obama has done with this policy, and Secretary Sebelius, quite bluntly, is they have taken those Catholics who took a risk to support them, . . . and he has left them out to dry. I mean, he really has, with -- in just a policy that I think is, quite frankly, indefensible.

David Brooks then added:

“When you have the government saying one size fits all, sort of a form of bureaucratic greed, you are going to do it our way, or not, well, then that insults a lot of people.”

The problem with mandates of any type is that they do not enable the diversity of beliefs and practices in our society.  Any government-mandated benefits risk that problem, and come across as paternalistic and elitist.  And now, unconstitutional.  It would be better to permit the market to develop a variety of health care plans that address the needs of various segments of our society.

The First Amendment of the Constitution provides in part “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  This is one of the founding principles of our nation.

Yet the Obama Administration has now said that Catholic and other religious institutions must either offer health care products and services to employees that violate their beliefs or violate the law and pay prohibitive fines.  Or close their doors.  How can this not be interpreted as prohibiting the free exercise of religion? 

And it comes perilously close to establishing the “Church of Obama,” as he permits no meaningful deviation from his regulations to those who believe differently than he does.

Regardless what you think about Obamacare generally or about birth control and abortion, do you think religious institutions should be forced to pay for benefits that are contrary to their beliefs?

Being right v. Getting it right

A couple of months ago, Stephen L. Guinn, Ph.D. and Gary A. Williamson, Ph.D., posted an article on AMAnet.org entitled “Eight Habits of Effective Critical Thinkers.”  Most of us would like to be thought of as effective critical thinkers, so what are the eight habits?

• Habit #1: They are more concerned about getting it right than about being right.
• Habit #2: They avoid jumping to conclusions and rushing to judgment.
• Habit #3: They do not accept information at face value.
• Habit #4: They avoid over-analysis that leads to paralysis in decision-making.
• Habit #5: They are continuous learners and work to stay well-informed.
• Habit #6: They show flexibility in their willingness to consider alternative ideas and opinions.
• Habit #7: They use critical thinking on themselves.
• Habit #8: They have a distinctive behavioral style.

All of these habits are important, and most of us have seen these habits observed and violated during our careers.

On reading this article, I was struck in particular by Habit #1: Worrying more about getting it right than being right.

How many times have we seen leaders fail to change course when presented with new information, primarily because they don’t want to look stupid?  Or acting without the information they need, because they don’t want to admit they don’t have the information?  In fact, it is a fiduciary responsibility of leaders to act in the best interest of their organization, not of themselves.

Unfortunately, it is a human tendency to act in our own best interest.

Have you ever been guilty of worrying more about being right than getting it right?

Which of the other habits do you think are particularly important?

Please leave a comment.