The Union Rep was treating the mediation session like his golden opportunity to prove what a great lawyer he could have been.
“A preponderance of the evidence in this case proves that Jack has been the victim of discrimination in the workplace.”
Jack had received a written warning, based on an incident where there was an argument and physical contact between Jack and his supervisor. Having received no earlier discipline in his 25 years at the company, Jack was insulted, and requested mediation. Present at the mediation were the manager who issued the written warning (and who oversees both the supervisor and Jack), the Union Rep – we’ll call him Perry, Jack, and me, the mediator.
Perry started the mediation with an opening statement in which he accused the manager of “an intentional and systematic plot to discriminate against Jack and to favor management”. Perry told the story of the incident and of the investigation that followed. He described a series of decisions that the manager had made that suggested bias in favor of management (in this case the supervisor). Jack appeared comfortable with having Perry speak on his behalf.
I felt annoyed with Perry from the start. I knew that he’d been through many of these mediations and I thought he understood that they’re not hearings, that there’s no point in trying to persuade me of anything, and that the chances were slim of persuading the manager that the manager had committed improper discrimination. I gathered that Perry believed that this show of argumentative brilliance would intimidate the manager and motivate him to settle the case out of fear of what might happen if Perry were able to demonstrate these skills in front of a judge.
But what was I supposed to do? It’s my job to support all the decisions that all of the participants in the conversation are making. So I gently checked in with Jack occasionally to confirm that he was comfortable with Perry doing all the talking. And, hard as it was for me, I reflected just about everything that Perry said: “So you’re saying that, contrary to what Manager is saying, this has been an intentional scheme to discriminate against Jack from the moment of the alleged incident.”
“That is correct,” Perry said. “And furthermore, the evidence proves this.”
One of the areas of disagreement was what exactly happened when there was physical contact between Jack and the supervisor. The supervisor had reported that Jack puffed his chest out and intentionally bumped into him. But Jack said that he was trying to walk away from the supervisor at the time, but that the supervisor was following very closely behind him – and when Jack turned around, it was the supervisor who bumped into Jack.
In an apparent attempt to channel a TV lawyer, Perry said, “it is absolutely impossible, since Jack was walking away, and then he turned around, that he could have been the one to initiate the contact. The evidence proves this.”
The Manager said, “What are you talking about? It’s entirely possible that Jack turned around and then intentionally chest-bumped the supervisor. And why did Jack turn around anyway, if he was really trying to walk away from the supervisor?”
“Don’t be ridiculous,” said Perry. “Surely you understand that when someone is following closely behind you, it’s natural to turn around and try to see what’s happening.”
Not that it’s my place to evaluate this sort of thing, but it sounded to me like Jack and the supervisor probably were describing honestly what they thought happened. Each of them thought the other one had initiated the contact – and in reality, in took both of them for the contact to happen.
The manager made this same point, to which Perry replied, “Nonsense. The evidence shows that the supervisor initiated the contact.”
“What evidence?” asked the manager.
“Jack’s description of what occurred,” said Perry.
“But the supervisor described it differently,” said the manager.
“But what the supervisor said is not true,” said Perry.
“How do you know that?” asked the manager.
“Because the evidence shows otherwise,” said Perry.
Perry really appeared to find his circular reasoning very convincing.
Thank goodness for what we call in transformative mediation trainings, “Core Activity #2: Monitor and Maintain Intention When Intervening”. This part of transformative mediation practice helps the mediator cope with the inevitable directive urges that may arise during a mediation session. Acting on these urges would not serve to foster empowerment and recognition shifts, and would likely be counterproductive. In this case, my urges included: to get Perry to shut up, to get Jack to speak up, and to get Perry to realize what a ridiculous man he was, to name a few.
Core Activity #2 allowed me to notice those urges I was having and to return to my intention of supporting the possibility of shifts for all, including Perry.
And it turned out shifts happened. Perry finally appeared to feel that he had expressed himself to the full extent of his awesome capacity; Manager showed amazing capacity not to be reactive to Perry; and Jack and Manager talked through a plan that they both could live with. (Manager agreed to rescind the letter of warning to Jack (as well as a letter of warning that had been issued to the supervisor) given the ambiguity around what actually happened in the physical altercation; and Jack agreed to attend a workplace sensitivity training, as long as the supervisor had to attend it as well.
There’s no way of knowing what would have happened if I had acted on any of those directive urges, but my guess is that Perry would have only dug in his heals or encouraged Jack to storm out of the session. As it turned out, all seemed to feel that they ultimately had had a good conversation, had gained a greater understanding of each other and had figured out a plan they all could live with.
So in the end, Perry got to feel as if he prevailed. And empowerment and recognition shifts occurred for all.