Mediation in the Mainstream, and Beyond

Next week, October 14-20, 2012, is Mediation Week, sponsored by the American Bar Association’s Section on Dispute Resolution. The purpose of Mediation Week is to increase the public’s awareness and understanding of mediation. This year’s theme is “Mediation in the Mainstream.”

Mediation has become a mainstream technique since I began practicing law. Thirty years ago, mediation was rare. Parties and their lawyers could settle lawsuits on their own, of course, and some judges held “settlement conferences” to encourage cases to settle, but independent trained mediators were not used very often, and lawyers did not learn about mediation or other forms of alternative dispute resolution in law school.

Typically, during those settlement conferences, the judge or a magistrate the judge appointed would browbeat the parties with the weaknesses of their position until they caved. I recall the settlement conference in one case in which I was defending a company against an individual plaintiff. The judge announced during the conference that the case should settle for $40,000. That was more than my client and I had valued the case at, but once the judge announced that figure, the plaintiff wouldn’t talk about any lower amount to settle. Trying the case would have cost far more than $40,000, so my client and I caved.

How does mediation help the settlement process?

Mediation Benefits the Parties:  

Cheaper: Mediation is much cheaper than litigating the case all the way through trial. Complex lawsuits can cost $10,000/month or more in attorneys’ fees. It isn’t unusual to see a large corporation spend over $100,000/month on a “bet the farm” type of case.

Even in run-of-the-mill auto accident cases, each side spends several thousand dollars to get the case to trial, sometimes more than the likely jury award. Often, it simply doesn’t make sense to continue a case through trial, but the parties need someone to help them resolve the matter in a way that they both can accept.

Speed: Mediation is faster than litigation.  Both parties may want some discovery prior to mediating, so they know something about the other side’s case. But typically the dispute can be mediated soon after the parties have exchanged basic documents and taken a few depositions.

In most civil cases that go to mediation, the parties later said they wished they had mediated sooner. After all, if the case doesn’t settle at the first mediation, the parties can agree to resume the mediation after additional discovery.

Control: The parties have more control over the outcome.  In a trial, the judge or jury decides what happens. In mediation, the parties are free to devise their own resolution of the dispute. Sometimes, they can agree to things the judge couldn’t give them – such as exchange of property, or reference letters, or other non-monetary remedies.

And the parties can set the terms for when payments and other exchanges will be made – the winning party doesn’t have to worry about executing on a judgement.

Mediation Helps the Judge:  

Preserves Impartiality: Mediation gets the judge out of pushing for settlement and preserves the judge’s impartiality. The judge can focus on the pre-trial and trial issues, without giving any indication of the strength of each side of the case, nor voicing an opinion on the value of the case.

Reduces Caseload: Plus, the more cases that settle during mediation, the less work for the judge to do. Most judges these days appreciate the value of mediation in reducing overcrowded dockets and streamlining their caseload. I don’t know of any judges who wish they could browbeat parties more into settlement. They are happy to require pre-trial mediation, and let the mediator try to settle it.

For all these reasons, mediation is a helpful process for both the parties and the court system. It preserves resources that would otherwise go to the lawyers, and leaves more resources available for the parties to use in resolving the matter to their own satisfaction. It is a good thing that mediation has become a mainstream tool in dispute resolution.

The Future of Mediation:

Mediation began in the context of resolving lawsuits, and that’s what I know the most about. However, mediation is moving beyond settling cases and into resolving other forms of disputes.

Mediation is now used to resolve school, neighborhood, workplace, and other forms of social disagreements. I heard one mediator joke that every neighborhood association needs a mediator on the board. It was said as a joke, but the person was only half kidding.

Will mediation move beyond the mainstream into everyday life? Or will we all learn mediation skills to  reduce the contentiousness of modern society? A pipedream perhaps, but who knows?

American Bar Association members can find more information at the Section of Dispute Resolution's website. A public source for information on mediation is the Building Dialogue blog.

Have you tried mediating a dispute you had? What did you like and dislike about the process?

You Can’t Legislate Love, But Regulation of Romance in the Workplace Is Necessary

“You can’t legislate love,” someone with whom I worked told me once.  We were discussing our company’s policy forbidding a manager from dating or marrying someone who worked in his or her group.

One of the subplots in my forthcoming novel about a business in trouble deals with a potential romance between one of the corporate officers and a woman in another division. They have started dating, then they move into roles where she reports to him.

Love happens. What are co-workers in love supposed to do?

According to a recent article in Workforce Week, entitled Office Romance Policies Can Reduce Risk, 38 percent of respondents to a Career Builder Survey had dated a co-worker, and one-third of them married the co-worker. Once people are out of college and graduate school, the workplace is a great place to find romance.

But still, employers should have policies on workplace romances. Otherwise, the risks of harassment and other problems when love goes bad are too high. I’ve dealt with lovers who turn each other in for theft, with one employee stalking a former paramour, with love triangles (particularly serious when two of the three employees are still married), and with several couples caught in inappropriate situations in offices, conference rooms, and minivans in the parking lot.

At a minimum, office romance policies should require employees to keep their pants and skirts on, except in the restroom.

Beyond that, here are issues for employers to think about when adopting an office romance policy:

1. Forbid managers from entering into a relationship with anyone in their chain of command. The risks of claims of coercion or sexual harassment by the subordinate, or of favoritism by other employees, are too high. If a personal relationship does develop between a manager and subordinate, or if someone a manager is dating is moved into a position that creates a chain of command, require the manager to tell HR or his or her superiors, so they can decide how to handle the situation.
2. Integrate the office romance policy with the employer’s conflict of interest policy (as it pertains to nepotism), so  it is clear that no one makes decisions on the hiring, firing, performance, and/or compensation of a relative or person they are dating.
3. Make it clear that employees must treat other employees with respect at all times. Forbid any harassment, stalking, disparagement, or similar behavior. 
4. Integrate the policy with the employer’s social media policy – it isn’t just conduct at work that should be banned, but also public conduct (including postings on Facebook and the like) that disparages or harasses other employees.
5. Consider whether to ban dating between employees altogether. The problem with a policy that is this broad is that it requires a definition of “dating.”
6. Consider whether to ban “public displays of affecton.” This, too, can be difficult to define.
7. Some employers require “love contracts,” in which employees who are dating acknowledge in writing that the relationship is consensual and re-affirm their awareness of the anti-harassment and non-disparagement policies.
8. Consider whether the office romance policy should apply to dating consultants, customers, vendors, and other people with whom the employer has an ongoing relationship. This aspect, too, should be integrated with the conflict of interest policy.

No, you can’t legislate love, but you can try to minimize the problems that result in the workplace when love goes bad. (Or when love goes good.)

Have you had any experiences where romances in the workplace caused problems?

How Do You Deal with Conflict? Use of the Thomas Kilmann Conflict Mode Inventory in Mediation

Picture of TKI from
http://www.edbatista.com/2007/01/conflict_modes_.html 

Mediators spend a lot of time thinking about conflict management styles. They want to be able to quickly assess how parties in a mediation deal with conflict.

One useful model for conflict management styles is the Thomas Kilmann Conflict Mode Inventory (TKI). The TKI describes five ways that people can deal with conflict: competing, collaborating, compromising, avoiding, and accommodating.

These methods of handling conflict differ in whether you look more to your own needs or to the needs of others. Competing and collaborating are more assertive methods of conflict management that focus on your needs and desired outcomes; avoiding and accommodating are less assertive.  Collaborating and accommodating are more cooperative methods of resolving the problem that focus on the needs of others; competing and avoiding are less cooperative. Compromising fits in the middle.

Ralph Kilmann and Kenneth Thomas developed the TKI in the 1970s. The TKI is based on dimensions similar to work by Robert Blake and Jane Mouton in "The Managerial Grid" (1964). Blake and Mouton described management styles along the dimensions of "concern for people" and "concern for task."

The TKI instrument is available through CPP, Inc. For a short, free conflict management model you can take to assess yourself that is similar to the TKI, see the Peace & Justice Support Network of the Mennonite Church  USA.

Here are some points to keep in mind when thinking about which style describes best how you deal with conflict:

• We all have biases in favor of one or two of the styles. That is, we prefer to handle conflict in certain ways.  The TKI instrument can help you identify your preferred styles.
• Our preferred styles can vary based on the situation. Many people deal with conflict differently when they are at work and when they are with their families, or when they are interacting with bosses and subordinates. You might want to take the TKI a couple of times, thinking of yourself in different situations each time.
• No one style of managing conflict is right in all situations, and all styles can be appropriate in some situations.  For example, if your spouse says something that annoys you, you might choose to ignore it (avoiding conflict). However, Penn State got into serious trouble when its leaders avoided conflict by confronting Jerry Sandusky.

As a mediator, it is important to know how you respond to conflict. Many mediators have taken the TKI, the Myers-Briggs Personality Type test, and similar personality assessments. These tools help mediators understand their preferences in dealing with others and how they can adapt their behavior comfortably to work with people who have other preferred styles.

It is also important for the mediator to quickly assess how each person in the mediation is dealing with the conflict. Is he or she competitive? Accommodating? Avoiding the issues? If you as the mediator want a lasting resolution, you will have to find ways to pull the avoiders into the negotiation and to tame the competitors.

For successful conflict resolution, you need all parties to buy into the solution. Where they have not all contributed to the resolution, they are less likely to buy in. It is the mediator’s responsibility to facilitate the parties in reaching a solution to their conflict.  You can best facilitate a good result by understanding yourself and others.

How do you prefer to deal with conflict? When has your preferred style worked well for you, and when has it not?

Three Tips for Crisis Communications

Every day we read in the newspaper about some crisis – a criminal indictment, a business failure, a natural disaster, or foreign unrest.  We react to these events in large part based on how the leaders of the organizations involved communicate with us.

I was part of a crisis communications team at one institution where I worked. We had many procedures and lists in place – how and where we would meet when disaster hit, whom we needed to bring into the loop within our company, and the external parties with whom we would need to communicate about the crisis. 

But we couldn’t develop the communications pieces until the problem occurred.  At that point, we typically muddled along, debating several drafts of talking points and press releases as quickly as we could. It would have helped to have a simple framework for what to include in our communications.

An article from the July 2012 issue of the American Bar Association newsletter, Your ABA, provides that framework.  The article describes three points that all emergency communications should contain. Although it was written for lawyers, this framework is generally applicable to anyone communicating in an emergency.

Here are the three points, along with some commentary on each (the points are from the YourABA article;  the commentary is based on my own experience):

• Show concern.  Almost by definition, in an emergency, someone has been injured or otherwise harmed.  Show concern for their suffering. Remember Bill Clinton’s reputation for "feeling their pain." Worry less about making an admission against your own interest and more about showing empathy. In the early stages of your response, you don’t have to talk about past events that caused the emergency, but you must sympathize with how people are reacting and feeling at the present.
• Show commitment.  People want to know you will stay with them through the crisis. Talk about your future involvement and commitment to see the situation through to resolution. Even if all you know is that you need to investigate further, make the commitment to investigate fully. State clearly that you will work with any governmental authorities that are involved. Go as far as you can, but no further. You don't want to make promises you can't keep.
• Show you will take action. In addition to wanting to know you are with them, people want to know you will make it better. Make it clear that you will take action as a result of what occurred and what is discovered during future investigations. Even if you don’t know whether or what corrective action is necessary, talk about fully reviewing the results of any investigation. Don't agree to specific actions too readily, but agree to what you can. Then, keep communicating as you later do act, to show you followed through on what you said you would do.

And always remember that you must be truthful, and you must communicate in ways that your audience will understand. Also, be as transparent as you can be.

Every crisis is an opportunity to improve your relationship with your stakeholders or detract from it. Often, in an emergency, you find yourself at a low point in the relationship. How you respond will make all the difference for the future.

What would you add to this framework for crisis communications?

Diversity and Development: Cohesion & Comfort v. Stuffing the Pipeline

My law school class more than thirty years ago was only about 20% women; today, most law schools have 50% or more female students. I recall attending a meeting of the Women Law Students Association, and realizing how nice it felt not to worry about gender issues, not to feel like I was “out of place.” I was probably less circumspect in my comments during that discussion than I would have been had I been in the minority as a female.

As a white professional and manager in a corporate setting, I was typically in the majority by race, but I recall two instances when I was the only white in the meeting.

One time was in a meeting to discuss a particular employee’s performance – all but one of the managers in this employee’s chain of command happened to be African American, and that white manager was not at the meeting. I was a white attorney outside the chain of command there to provide legal advice. On that occasion, I recall feeling that my company had “arrived” on the diversity front with this random occurrence of a mostly African American chain of command. But of course, it had taken many senior managers in that division many years of recruiting and development work before this happened.

The other occasion where I was the only white in a meeting was at a session during a Black MBA Convention where I was recruiting. On that occasion, I recall being very conscious of my race, and realizing that that is how most minorities feel most of the time.

Unlike my reticence in my male-dominated law school classes, I felt very free at that Black MBA meeting to voice my opinions.  I wondered, however, whether my outspokenness was due to (1) the maturity I had gained in the twenty or so years since law school, or (2) my “status” as a member of the majority race, whereas in law school I had been of the minority gender. I will probably never know the answer to that, but at least I was self-aware enough to recognize my behavior and to ask myself the question.

I wonder how many white males would have had that same awareness. When I told my husband this story, he had no idea what I was talking about. Although diversity sensitivity and self-reflection are not among his strengths.

The Wharton School of Business published an article on their Knowledge @ Wharton online newsletter on August 29, 2012, entitled “Race, Gender and Careers: Why 'Stuffing the Pipeline' Is Not Enough”. The article describes research by Wharton professor Katherine L. Milkman and Harvard Business School professor Kathleen L. McGinn, which found that placing professionals of one race or gender all in the same work unit led to lower retention of those professionals.

Although there was greater social cohesion in these work groups – like I had found with the Women Law Student Association – the members of the groups perceived they were competing against each other for limited opportunities for advancement. They perceived there were “quotas,”  whether there were or not. In addition, they perceived structural marginalization – the saw their work unit as a “ghetto.

The conclusion of this research:

"Attempts to design employment practices that are blind to the demographics of candidates are likely to succeed only if all candidates perceive and receive equal mentoring, sponsorship, and peer support regardless of their race and gender."

Milkman is quoted in the article as follows:

"Having mentors and role models who look like you is important. But, more interestingly, we see these negative effects associated with being in a work group with lots of competitors for promotion who resemble you demographically."

In other words, it may be helpful to have opportunities in cohesive groups for interaction, but the workplace with its competition and race for advancement needs to be open.

What has your experience been with race and gender in homogenous work groups?