Earlier this week I was asked the following question by a concerned General Counsel: how can we help our employees grapple with on-the-job justice issues without leading them to believe that our proposed solutions are untrustworthy.
The problem, as eloquently described by a lengthy email posing the question, is one that all employers face, large and small. For this GC to have thought that mediators might make a difference is particularly heartening on a day when mediator Justin Patten was reporting that mediators are the furthest thing in a UK company’s mind when dealing with conflict.
To understand the depth of the problem posed, I’m providing you with the full email sent to me:
I just read your blog post of September 15, 2008 regarding Peter Murray’s article (which I have not read yet). I was having a discussion today with my Director of Human Resources, and raise a related issue.
Our company spends an inordinate amount of time explaining disability, workers comp and federal employment law to employees who misunderstand what their rights are, or do not give us the right information to help them get the help they need.
Of course, we are the big bad employer, so any information we give them is suspect. I have considered hiring a social worker as a case manager/advocate for these people, but that position would just be interpreted as another tool of the evil employer out to keep them out of work/make them go back to work in violation of their best interests, so it would be a waste.
We would LOVE if there was an independent agency that would assign a case worker, not to work as an attorney for the employees, but as an advocate to help them understand their rights and access the system correctly. I would gladly pay to fund this service.
Then I realized, if the employer, or a group of employers, funded this employee advocacy agency, employees would think the advocates were biased toward the employers and were just in a sham relationship to deprive them of their rights to serve the interest of the employer.
Now, I do not believe this would be the case. I trust in the professionalism and ethics of mediators, but I do believe that uneducated and single users would form that opinion. Professor Murray’s opinion reinforces that conclusion, even though at first glance, he would seem to be “educated.”
But, is bigger government the answer. My experience with the EEOC is that they want employers to do MORE than is required by law. We have had success with mediators after complaints are filed, but my goal is to get the employees what they need when they need it, not have a mediator help us fix it after time has run out.
What are your thoughts on this?
The Problem as Cognitive Bias
I’ve highlighted the sections of the GC’s email that raise the problem of reactive devaluation — our tendency to devalue and resist anything our “opponent” offers to us. Most attorneys were taught reactive devaluation as first year associates — “if opposing counsel wants it, you don’t.”
As the linked article — Reactive Devaluation in Negotiation and Conflict Resolution — notes:
One can be led to conclude that any proposal offered by the “other side”— especially if that other side has long been perceived as an enemy—must be to our side’s disadvantage, or else it would not have been offered. Such an inferential process, however, assumes a perfect opposition of interests, or in other words, a true “zero-Sum” game, when such is rarely the case in real-world negotiations between parties whose needs, goals, and opportunities are inevitably complex and varied.
Combatting Reactive Devaluation in the Workforce
Cognitive biases such as reactive devaluation are not random artifacts of an irrelevant evolutionary past. They are built-in protections against deception by our friends as well as by our adversaries. There is only one lasting protection against this bias — to engage in clear communication with your work force on a daily basis concerning the mutual and complementary interests of employer and employee; to express your belief in your interdependence in word and deed, i.e., by engaging in dialogue and activities demonstrating benevolent intent; and to willingly listen to one another’s complaints, understanding that one man’s benevolence is another’s bondage.
As recent legal news touching too close to home (the Heller dissolution) bears out, the workplace will not work if the middle or the bottom collapse. If human resources are your greatest capital asset, attend to the wisdom of Adam Smith Esq. on Heller’s recent failure:
“Our assets go down in the elevator every night.”
Take that bromide seriously.
You must give people a persuasive reason to come back “home” every Monday morning.they go down the elevator every night and must have a good reason to come “home” the next day.
Asking Diagnostic Questions and Using Transformative Mediation Methods
I repeatedly tell my clients what I’ve learned from the academics who teach negotiation strategy and tactics at elite business schools throughout the country — 93% of all negotiators fail to ask their bargaining partners diagnostic questions the answers to which would dramatically improve the benefits of the bargain to everyone.
What’s a diagnostic question? One that would reveal our bargaining partners’ needs, desires, priorities, preferences and motivations. I’m no employment expert, but I have participated in the management of law firm personnel as a partner and have been managed by others throughout my professional life. As a full-time mediator for more than four years, I have also asked hundreds if not thousands of diagnostic questions to help litigation adversaries understand one another’s motivations, to reframe those motivations as non-threatening, or, at a minimum, the result of ordinary human fallibility, and to explore the parties’ mutual and complementary interests. I also remind my parties and myself as often as possible that you cannot drill a hole in the other guy’s side of the boat without making your own side sink to the bottom of the lake as well.
As the transformative mediators who have been most successful in workplace disputes tell us, our job is to assist the parties in moving from fear and powerlessness to accountability and mutual recognition of the interests of the other.
Empowerment, according to [the fathers of the transformative paradigm] Bush and Folger, means enabling the parties to define their own issues and to seek solutions on their own. Recognition means enabling the parties to see and understand the other person’s point of view–to understand how they define the problem and why they seek the solution that they do.
(Seeing and understanding, it should be noted, do not constitute agreement with those views.)
Often, empowerment and recognition pave the way for a mutually agreeable settlement, but that is only a secondary effect. The primary goal of transformative mediation is to foster the parties’ empowerment and recognition, thereby enabling them to approach their current problem, as well as later problems, with a stronger, yet more open view. This approach, according to Bush and Folger, avoids the problem of mediator directiveness which so often occurs in problem-solving mediation, putting responsibility for all outcomes squarely on the disputants.
Rights and Remedies vs. Interests
It’s not surprising that employees just don’t seem to “get” the legal rights and remedies company HR departments keep trying to explain to them. They don’t make any sense absent legal training.
People who are not lawyers simply don’t understand why there is a legal remedy for one type of injustice but none for another that feels just as unfair. Let’s take our patchwork of Constitutional protections for employees. As an life-long ACLU member, I’d be the last to denigrate them. But we have to understand that we’ve created a “fair” workplace for only some of our citizens, not all of them.
Women, people over 40, under-represented minorities and the like, can take the square peg of their unfair work treatment and cram it into the round hole of a viable cause of action. If an employee does not want to cry “gender discrimination” even though she’s being treated badly on the job, or if he has no bundle of legal rights to assert, there is no remedy for a termination that feels (yes, feels) wrongful. Remember, it took us lawyers quite some time for the legal worldview to “click” and we were immersed in it, drilled in it and eager to learn it. Employees just want someone to listen to their problem and to help them resolve it. They don’t want to know the wage-hour laws, the need to exhaust administrative remedies with the EEOC and the like.
Employees and employers have people problems with justice issues, not legal problems with “irrelevant” emotional responses that get in the way of resolution.
Expressed emotion is the key, not the lock.
It is we — the lawyers — who legalize and monetize injustice, shutting our clients down when they try to explain what the problem really is because it’s irrelevant to the legal solution.
If you’re old enough to remember the lingering moment in United States history when our educational institutions went from white, on the one hand, to multi-hued, on the other, you’ll know intimately how you deal with reactive devaluation. You get to know one another. Do this and Kaneesha is not “black” or “African American” but a well-known acquaintance or dear friend. The same is true for employers and employees. Create activities in which (alleged) oppressor and (purported) oppressed come together to engage in mutually productive (Habitat for Humanity springs to mind) and mutually enjoyable (basketball? girls nights out?) activities. At the holiday party, don’t relegate the “underlings” to their own table. Walk your talk. Destroy the hierarchy everywhere except where it’s actually necessary to get work done.
I can’t describe the benefits of interest-based resolutions over rights-based solutions any better than does my mentor and friend, Ken Cloke, in his brilliant new book — Conflict Revolution.
[r]ights-based processes . . . generate winners and losers, undermine relationships, and result in collateral damage, . . . Since rights rely on rules, change is discouraged, though not prevented, and conflicts are settled rather than prevented or resolved.
This is not easy work. As a mediator, I know how elusive Cloke’s “outcomes” can be
— outcomes [in which] both sides win and no one loses, when former adversaries engage in meaningful dialogue and reach satisfying agreements, and when power is exercised with and for each other by jointly solving common problems.
I have, I am afraid, given my GC a problem rather than a solution. More accurately, I’ve suggested an altered way of looking at the problem without a great deal of detail about crafting a solution. Not only could people better versed in employee relations write books on this topic, they have. Therefore, I’m asking my good ADR blogging buddies to please chime in here for you.
Diane Levin? Geoff Sharp? Blaine Donais? Ombuds Blog? John DeGroote? Nancy Hudgins? Stephanie West Allen? Gini Nelson? Tammy Lenski?
This article originally appeared in the Oregon State Bar Bulletin (June 1999)Effective representation of clients in mediation requires the same level of preparation, diligence and assertiveness as is required in...By Richard Spier