Mediators almost to a man/woman believe that they are totally neutral in the act of being a mediator. This neutrality is a positive moral and ethical position, and a necessary one for the process of mediation. However, mediators still ask themselves whether they can really mediate with their personal ethics and morality in a vacuum, suspended from the problem at hand. The question is, does this really ring true in extreme situations, and how would some mediators handle the same problem, based on their personal ethical and moral standards and positions.
This article is meant to pose a mediation problem that challenges that assumption, and poses some possible outcomes that may depend on a mediator’s personal ethics and morality. These, especially with respect to how they intersect with the manner in which they mediate.
The Extreme Circumstances Of The Case
In this example, it is important that some background is introduced. It is the case that this information does all come out in the mediation because it is actually relevant to the case. This case is a racial discrimination case. The Claimant is a “racially protected class female” under Federal Title VII and most State Statutes with respect to Discrimination.
The Complainant is a “welfare mother” who lives with her 6 children and her current most favorite boyfriend. She worked in a factory making silk ties in an urban area of the US. She has had a mediocre work record, but technically acceptable reviews. She has always used every possible benefit day available to her every year, in addition to 2 separate instances of FMLA leave for pregnancy, unpaid for a total of 19 unpaid weeks in the last 3 years. She has pushed the attendance policy close to the limit several times in her 13 year employment with the company. She has never been married, and is highly promiscuous, as she truly believes in her heart that God has put her on this earth to suffer through living the life of a “harlot” but not accepting money for any of her sexual exploits. So, she has a regular job to support herself and her 6 children, all born out of wedlock. She also believes totally and sincerely that birth control is a crime against God and humanity, and that she had been instructed by God to have sex with at least 3 different men every week.
The Defendant is the owner of the silk tie factory. He is an Evangelical Born Again Christian. He bought the business 8 years ago, and the Complainant already was a 5 year employee at the time he took control of the company. Especially because the Complainant is openly vocal about her beliefs, but not in violation of any company policy, the complainant contends, that a systematic process of conspiracy was engaged in to denigrate her, embarrass her, demote her, and ultimately summarily dismiss her. There is significant evidence to support her claim.
The Mediator is a registered Independent voter. (This political affiliation is selected because the situation is so extreme, that it is assumed the basic life style of the Complainant is not in accordance with 99.99% of all mediators’ personal lifestyle, regardless of political affiliation.) The Mediator is a 52 year old male, who was the Sr. Vice President of a Fortune 500 company, where he was responsible for all Labor Relations including contract negotiations, Union Grievance meetings, normal extensive State and Federally compliant record retention, Legal Interviewing Technique for New Hires education, and the Chairman of the Internal Ethics Committee which reports directly to the President of the company. He is presently retired, and does mediation only to make his living. He has significant wealth which he accumulated through his 29 years as a high level and ultimately senior executive of the Fortune 500 Company. He is a retired executive but an active Mediator. The Mediator is a ‘religious’ but socially liberal Christian. He attends Church approximately 35 times a year including Easter and Christmas. Financially he is a moderate conservative.
Therefore, the Mediator could be demographically, close to most mediators, in some ways if not in almost all ways, depending on the reader/mediator. The assumption of this article is that no mediator regardless of basic personal moral and ethical grounds agrees personally with the Complainant’s lifestyle for themselves. The question is whether the Mediator has a problem and how great their problem is, if they do have a problem; that would affect the way in which they mediate the conflict?
It is the Complainant’s contention that the company actively discriminated against her, because of her ethnic status, her lifestyle and her “religion.” She states that the company instituted an active and aggressive program of targeting her for termination. She has evidence in terms of company e-mail that shows that e-mails from the Owner and President of the Company had given approval for certain ‘reconnaissance’ and other actions against Complainant. And ultimately, Complainant contends that her official Complaint to the Company HR Department was not only ignored for its illegality, but was in fact the basis of her termination.
There is considerable evidence, written and affidavit, that this representation is accurate. She has been unable to get a job now for 3 months, although unemployment records clearly indicate she has tried. In addition, there is evidence that the Owner of the silk tie company has illegally restricted her ability to gain future employment by telling other employers NOT TO HIRE HER in violation of his own company policy and the law.
Is The Mediator Still Neutral Or Not?
The evaluation of whether the mediator is neutral now or not is the reason for the extremity of the circumstances of the case. The Mediator has not been charged to judge Complainant’s life style. Complainant is not involved in any technical illegal or violent activities, including her rearing of her children, who are well groomed and cared for and well fed. Her location of her residence is more a factor of how much money she can afford after she pays for food and other expenses. Her medical plan includes Dr. visits and medicine, but not dental, and one of her 6 kids has a dental problem which costs significant out of pocket money each year. So her choice of residential location is driven primarily out of financial means and proximity to work so she incurs the lowest possible transportation expense, since Complainant does not earn enough money to have a car.
Nonetheless, the mediator decides that his neutrality, regardless of his personal beliefs, morality and ethics, he can act neutrally on the plain issue of “Discrimination.” This is not a wrong or right decision; it is just what he does.
The joint session opens with both the Complainant and the Defendant showing visible animosity toward each other. The Complainant proceeds to tell her story, and very specifically and articulately. The Defendant uses a poor performance record for the termination, but does not really deny the contentions of the Complainant. Nor does it have a cogent argument against the Defendant’s position that her termination was not in accordance with the Collective Bargaining Agreement, which is also strongly pointed out by her advocate who is the Union Attorney.
The mediator takes the Complainant into caucus.
In caucus with the Complainant, the Mediator finds that while the Complainant is articulate, almost everything about here is abhorrent to him, including he realizes her actual smell.
The Mediator discusses with her and her attorney the evidence that supports her contention that this has been done to her. The Mediator realizes that her evidence is some of the tightest he has ever seen in a mediation of this type, and might in fact be one of those cases that handled right, could be a winner, even through appeal.
The Mediator realizes that he has a problem. He cannot actually stand to be with the Complainant, but that is not his job, so he is able to put that aside and work with the Complainant. Yet he is constantly dealing with a significant amount of cognitive dissonance as her life style, especially with regard to her sexual behavior is just unacceptable to him personally.
He therefore realizes that he has a problem. He also realizes that virtually ANY mediator would have the same problem as he is right now. He is equivocating about his feelings for continuing with the mediation, but he is also equivocating with the nature of his job as a mediator. He is in a serious quandary as to what the proper ethical and moral thing to do would be at this point in time. But he cannot disregard the incredible nature of the evidence that has been laid before him. It is truly the cleanness “slam-dunk” case of discrimination he has ever mediated, in fact ever seen in his whole life dealing with Labor Relations.
He decides to have the 2nd Caucus with the Defendant and see how it goes.
In caucus with the Defendant, the Mediator finds that clearly, the Owner has a problem with the Complainant’s life style, and is tempted to actually preach against it, but restrains himself. In questioning of the Defendant concerning the evidence presented in joint session, and some of the evidence which the Mediator obtained permission from Defendant to discuss with the other side in caucus, the Defendant is defensive, but not flat out denying the contentions.
The Mediator requests that the Company’s attorney give his client his legal opinion as to the potential exposure and cost of proceeding beyond mediation. The attorney notes that the Company’s chances of winning the case are poor, however, he is moderately confident that he can get the award at least reduced significantly in appeal, if not have the verdict turned over completely. He estimates the cost at a minimum of $100,000 in legal expense, but also points out the fees are statutory in these cases and they do run a risk of paying both legal bills.
The Mediator realizes that statistically, the Company attorney is correct. So, he starts to discuss the cost and invasiveness, and risk in pursuing this case. The Owner feels that it is his duty to pursue the case, but is willing to discuss settlements, in good faith.
The Mediator again wonders what he should do at this point in the case. He calls a one hour lunch break.
The Mediator’s Conundrum
The Mediator now is truly a mediare, the Latin, “in the middle” as the root of the word implies. But he is not just in the middle of the parties and the conflict. He is also in the middle of his own conflict.
He faces his prejudice against the Complainant and her lifestyle. Yet he knows there is no place for this prejudice in the process of mediation, and no relevance. He has to decide himself, if he is ethically and morally able to continue with this case. If he determines that he cannot, he has a duty to impasse the case. That is always on option at any time. It is in the mediation agreement, any party can terminate the mediation session at any time, including the mediator.
Yet, the thought of this conclusion in several ways violates the mediator’s own personal ethics and morality. In the first place, he is a professional neutral. How would it reflect on his performance if he was unable to finish a mediation because he felt that he was in moral conflict with the Complainant? And this concern, particularly in light of the strength of her complaint? In the second place, he also has a problem with the moral and ethical stance of the Defendant. Isn’t it his duty to confront the true issues, and have the parties face the confrontation in a controlled setting, rather than just to leave it to the unpredictable will of a judge or jury? I believe most mediators would face the exact same bifurcated issue. So, the impetus to “do his job” is the prevalent consideration in this situation. And the Mediator is unable to simply shirk his duty, because his morality and ethics conflicts with the parties at hand.
So, he decides to continue, because that is his job, he always has the authority to terminate the session if things get out of hand, or if he does not consider it within his ability to continue.
This problem is the core of the difficult decision a Mediator has to make in the world of competing ethical and moral standards, including the Mediator’s own beliefs in that regard. Can the Mediator reach in essence, beyond neutrality, because it is his job and because it would benefit the parties most by continuing if settlement is possible? The Mediator decided it was possible.
Second Round Of Caucuses
The Mediator chooses to caucus first with the Defendant. The Mediator focuses on the potential risks of taking this case forward, as opposed to making a deal right there and then. He especially stays away from discussion of the monetary component, having the feeling, that the Owner with his zealous position would hold the attitude that his morality called for him to see this through, no matter what the cost.
Instead, the Mediator focused on the effect that this suit would have on the Defendant, the non-direct monetary cost of this untoward publicity. If the result was as per the Company attorney’s legal opinion; and the Company lost the first decision, the Company may be irreparably damaged. The Company may be publicly perceived as extremist and discriminatory. The Company may have to wait months or years to get heard in an appeal. And it is just possible that they might lose the appeal, and perhaps be completely destroyed. This would squander the “goodwill” of the asset that the Owner had purchased. All of a sudden, the Mediator sensed a change in the attitude of the Owner.
The Mediator asked the Defendant and his advisor if they had anything more to discuss at that time. They said no.
The Mediator went to the other parties and asked what the defendant wanted to settle the case. Defendant wanted $75,000 (her annual salary was about $36,500.) She articulated the reasons why she wanted that amount. There was no pain and suffering component to her request. The Mediator suggested that they all have a joint session where she would present her request and her reasons for that amount.
The joint session then proceeded and the Complainant specified her request for settlement. The Defendant’s attorney asked for an explanation. They discussed this for about 15 minutes, and the Owner said, “Can I please speak to my attorney in the hall?”
The Company came back and offered $50,000.00 and 9 months of paid COBRA health insurance (She had already used 3 months, statutory limits prevented the Company from offering more months than that.) The Complainant who had 6 children saw very large value in the COBRA coverage and was realistic to understand that to her with 6 children, continuous immediate coverage was a necessity and she may not be able to provide it for as much as a year, even if she got a new job tomorrow.
The Complainant accepted the offer of the Defendant. The case was settled with no admission of wrongdoing by either party.
Commentary On The Mediator’s Decision
The author requests that readers send commentary on this article, and post it via the comment option in the mediate.com system below. The issue discussed in the above scenario may be played with interchangeable parts and problems, but it does come down to an issue of Conflicting Ethical Concepts. Any views on how “Conflicting Ethical Concepts” within one situation or person can be resolved are welcome.