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Alternatives to ADA Mediation: An Organizational Ombuds Perspective

by Marsha L. Wagner
March 2003 Marsha L. Wagner
Though there can be no dispute about the value of formal mediation of ADA workplace conflicts, in some situations there are other forms of conciliation or informal resolution that may be more appropriate. In my own experience as an organizational ombudsperson – an impartial, independent, confidential, off-the-record resource for conflict resolution -- I have often noticed the frequency with which illness, injury or disability is a factor in workplace disputes.

In fact, in about 30% of the cases brought to the Ombuds Office, there is some kind of impairment. The conflicts cover a wide range – disputes over sick days or time off for doctors appointments, stress-related symptoms (psychological and physiological) alleged to result from workplace tensions, work-related physical strains or injuries, supervisors’ queries about how to manage a subordinate with a chronic illness, or a person with a disability considering how and whether to request a workplace accommodation. Often a current conflict over performance or recognition has underlying issues that can be traced back to a time when the employee missed work due to illness, childbirth, surgery, or a disability.

ADA mediation is probably most fruitful in many cases that are clearly covered by the ADA. However, many illnesses and injuries are not chronic, do not impair an essential life function, or are only indirectly related to a bona fide disability, and these are situations that are perhaps most amenable to conciliation or informal conflict resolution – including coaching, facilitating communication, or shuttle diplomacy – characteristic functions of the organizational ombuds. In my experience, there are many grey areas: what begins as an apparent short-term depression could become chronic, and a surgical procedure could lead to complications that create a disabling condition. It often takes fine-tuned sensitivity to create appropriate workplace adjustments for the common not-quite-a-disability grey areas.

Employees may come to the ombuds office for assistance and options for all kinds of conflicts or dilemmas, but often they make the contact when they are experiencing considerable stress. In virtually all the situations in which people have consulted me in the ombuds role regarding disputes involving sickness, injury, or disability (and in some cases the conflict itself is over which of these categories applies to the condition), there coexists an interpersonal or emotional issue. The employee may feel the supervisor is patronizing or overly harsh and unsympathetic. The supervisor may resent the employee’s illness or absence, or may distrust the employee’s claims of injury. Feelings may be hurt over breach of confidentiality or of lack of acknowledgement of pain and suffering. A common scenario begins with a supervisor being excessively generous in granting time off for an employee who falls ill, and then gradually wondering if the employee is taking advantage of that flexibility, and ultimately feeling betrayed by the long recovery period and resulting work crunch and then cracking down harshly and even disciplining the employee for poor performance or excessive absenteeism.

As in mediation, the first step in facilitated conciliation is to have each party identify his or her feelings, needs, and interests. Sessions may be joint or multi-party meetings, or the ombuds or facilitator may meet with each party individually, and shuttle back and forth. Often there are both short-term and long-term issues, and these need to be prioritized, particularly if the circumstances require some urgency in decision-making. The next stage of the process involves finding ways for each party to come to a better understanding of the other’s perspective. This can be fostered by coaching each party to articulate his or her concerns, or by having a neutral third person sit in on the discussion to encourage respectful listening, or by giving the facilitator/ombuds permission to engage in shuttle diplomacy. Particularly with situations such as illness, injury, and disability -- which themselves are often laced with pain, fear, change to one’s sense of identity, risky medical procedures, concern for privacy, and other emotional experiences -- the possibilities for misunderstanding are enormous. Each party may be reluctant to address the sensitive situation directly, and may react by jumping to conclusions or even falling back on prejudices. Creating improved mutual understanding is the essential foundation for the concluding steps, which – varying with each circumstance – involve decision-making, policy and procedure clarification, drawing up mutual expectations or “ground rules” for the future, adjustments or accommodations.

A significant characteristic of workplace conflicts is the continuity of relationships. Each employee has a work history and a potential career future. Moreover, each employee has co-workers as well as a series of supervisors who will provide both formal references and also informal reputation links in the industry or field of specialization. Workplace conflicts often have a spill-over impact on others in the workplace – particularly if one employee is absent due to illness and others have to take up the slack, or if others feel they may be impacted by the precedents set in the outcome of the case being resolved.

As in ADA mediation, multiple decision-makers may need to be consulted. For example, say a mid-lever manager takes a four-week leave for abdominal surgery, and during that period her peers perform her work as well as their own. The period is extended, due to surgical and recovery complications. After suffering a series of unanticipated medical setbacks, the employee becomes depressed. On the days she returns to work part-time, she is impatient with subordinates, and they object to her rudeness. She fails to meet deadlines, but continues to promise to fulfill her work responsibilities. Her supervisor and peers find her intentions are admirable but her performance is unreliable; the supervisor consults human resources, which asks her to provide an assessment from her physician. One day in exasperation she throws her purse in the direction of her secretary, and bursts into tears. Hearing the frightening sounds, the bookkeeper in the adjoining office is alarmed and calls corporate Security as well as her union representative. To resolve this multi-party conflict optimally, the informal workplace conciliator expands or enhances the resolution so it addresses the interests of primary parties, management, the union, human resources, security, colleagues and affected bystanders, and so it balances appropriate confidentiality with the various officials’ and co-workers’ needs for information and explanation.

Finally, the process of conciliation in an ongoing employment situation rarely comes to a neat conclusion. As time goes on, the health and recovery process evolves, a similar or different situation may recur, shortcomings or omissions in the original agreement may surface, or guidelines may be neglected or only selectively complied with. Any party’s feelings about the matter may change. In order to have a truly stable resolution, it is important for the conciliator to be able to follow up from time to time, and to facilitate re-adjustments or additional agreements in an open-ended process.

Responding to a dispute by first attempting a relatively informal conciliation does not exclude the option of using formal mediation in the future. There are numerous pros and cons to consider in determining whether to use ADA mediation or a less formal conciliatory approach. These factors include pragmatic considerations such as timing, budget, availability of a third-party neutral, limitations of the program or agency procedures, accessible meeting places or other accommodations for accessibility. Other variables are organizational culture, the nature of the conflict, the types of tangible and intangible issues involved, and the degree of formality and durability required in the resolution. It is beneficial for organizations to have available a variety of options for conflict resolution in order the select the most appropriate approach to each situation.