Mediation in the Workplace: Two Case Studies

Edited version first published in SBN Magazine, October, 2003 and reprinted with permission.

More and more people in the business world are hearing about the uses of mediation as a useful alternative to litigation in resolving disputes between employees, between labor and management, or between the company and its customers or vendors. Some companies have even instituted the use of mediation or arbitration (not the same thing) as a policy, to be used as a first line of defense in the hopes that conflicts will not escalate into costly, embarrassing, damaging court cases.

As a psychologist and provider for a number of Employee Assistance Programs (EAPs), I have had any number of occasions to provide services to “problem employees,” identified by management by virtue of their conflicts with other employees or management. Unfortunately, the number of such cases referred for mediation is much lower, even though I believe that method would most often serve all parties far better.

It may be useful to look at a point-by-point comparison of the major aspects of these two types of dispute resolution, taken from actual cases.

I. Sexual Harassment in the Workplace (Part 1):

Sexual Harassment is an issue that unfortunately is found in a great many workplaces, despite all of our employee orientations, trainings, and other proactive measures. The “perpetrator” in such a case in a Cleveland area business was referred to me (as a provider for the company’s EAP) by the director of his H.R. Department. Charges had been raised against “Joe” (as we’ll call him) by “Elaine,” a female subordinate, to the effect that he had engaged in inappropriate, suggestive, and provocative language and other behaviors toward her. The company’s agenda was clear: this problem employee was to be “fixed” through the therapy process.

Does this sound like a case your company has faced? The good news in this case is that management did not compound the problem by leaping into the potential powder kegs of summary termination, mandatory sanctions, or litigation. The bad news is that little if any good came of the therapy encounter.

Why? The accused employee disputed the allegations from the outset, stating that:

1) his behavior was no different from the behavior of many co-workers, including the “offended” female coworker herself;

2) allegations against him had been grossly exaggerated and in some cases fabricated altogether; and

3) in his opinion, the allegations had less to do with his behavior toward the coworker and more to do with an ongoing conflict between them based on workplace “pecking order” and career advancement.

Joe was of the opinion that his employer was not so much interested in looking out for his coworker’s rights or job safety, or in resolving this complaint, as it was in “covering its own behind” against liability that it would face if it did nothing to protect her. Frankly, I saw nothing from the company to refute that opinion.

The employer rejected my suggestion that the two employees be allowed to face each other in the presence of a neutral third party (either me or someone within the company), discuss their respective points and complaints, say exactly what they wanted, and reach a set of mutual agreements regarding their workplace behavior.

Instead they held to their position that this problem would be solved by “fixing” the offending worker. “Treatment” was perfunctory and unsatisfying. We discussed what had happened (only from his point of view, of course), and what he might do differently in the future. He did not want to change, only to be secure from false allegations that could damage his career. What Elaine wanted I never knew, because this was a classic case of “he said, she said”, without the “she” there to say.

I never heard back from the employee or his company, so I don’t know how this story came out. I know that the two principal parties never agreed to anything during this so-called “solution.” The company probably thought it did the right thing, but I seriously doubted it.

II. Sexual Harassment in the Workplace (Part 2):

A very similar case arose between a tenured male professor at a local university and a “mature” (40-something) female student. Although the university setting is not exactly the same as a traditional workplace as in the first example, it should be evident that the issues, dynamics, and concerns were almost identical.

The professor served as this student’s primary academic advisor in a graduate program, a relationship which required a great deal of one-to-one contact. She accused him of trying to take advantage of his status and power for personal, perhaps sexual, favors. She said that he had touched her in ways not appropriate to their relationship and had tried to take her out to dinner several times, among other things. She believed that his efforts compromised her personally and academically, but that even mentioning these complaints to the university placed her in peril of being “blackballed,” and losing the years of study she had put in toward her advanced degree.

So it was with great trepidation that she petitioned the university for help. The Vice President for Student Affairs agreed to request that both parties sit down with a mediator to resolve their issues. It was understood that participation was voluntary and confidential, and that if their meeting did not produce agreement, both parties retained all rights to pursue other avenues to get satisfaction.

Unlike the people in the first example, these two persons were able to reach a complete agreement in a single mediation session lasting less than two hours. This was possible largely because of one aspect of mediation that makes it so different from other forms of conflict resolution. The purpose of mediation was not to identify the guilty party and punish him or her. Nor was it to “prove” whose side of the story was the “right” one. Because of this the two parties were not obligated to agree about exactly what had happened before (who did what to whom?). Although we hoped that the professor would become somewhat more “socially conscious,” and rethink his attitudes towards women, the success of the mediation did not depend on that.

Rather, this mediation can be said to have resulted in “complete agreement” because all they were asked to agree on was a workable course of action for the future.

She didn’t want him convicted or punished, which might have been satisfying but would have come with the side effect of making the conflict public and jeopardizing her own future in the university. The university certainly did not want this issue to become public, as it would have done if mediation had failed and she pursued the matter in court.

All she wanted was an acknowledgement from him that his behavior had violated her boundaries (whether intentionally or not) and an agreement to abide by a mutually-established set of rules of conduct between them in all future academic contact. All he wanted was to be secure against what he perceived as unfounded accusations, so that his job and livelihood would not be threatened and his reputation would not be tarnished. The university, meanwhile, wanted both of these people to be satisfied so that this case would “go away” without cost or other damage to the university.

When they reached agreement, the only thing that was reported to the university V.P. was that the student and professor had reached an agreement. The terms remained private. As long as both parties abided by the terms of the agreement, the entire process, the contents of the complaint, and the specifics of the agreement remained confidential. If either party violated the agreement, the other could feel free to return to mediation or to pursue other avenues, such as litigation.

In fact, both parties abided by the few common-sense terms and respected the other’s rights. As a result the student was able to complete her graduate degree and the professor’s position in the university was undamaged.

Observations:

What a difference between the handling of these two very similar cases! In one, the employer’s handling gave only lip service to the rights of both employees. What really happened remained in dispute, and at least one if not both employees came away with a sense of dissatisfaction, based on the simple fact that they had not heard or been heard by the other person. The two people most involved agreed to essentially nothing.

The accuser may very well have come away with the grumbling feeling that her supervisor still doesn’t “get it,” sees her as an angry malcontent, and will now have his eye on her to get even at any opportunity. The accused, meanwhile, most certainly came away with the fear that his alleged indiscretions were now on his “permanent record,” and that his accuser could damage him further at any time with other false charges.

Meanwhile, the employer superficially protected itself, but left the festering sore of unresolved conflict intact and ready to break out again at any time.

In the second case, the “company” used the radical idea that two people in conflict can actually sit down and settle their differences if given a chance, the proper environment, and reasonable motivation. The chance was an offer to use a mediator’s help to talk to each other. The proper environment was a neutral, safe, confidential arena with rank set aside for the moment. The motivation was to reach a workable plan for the future without escalating the conflict to another arena (such as a courtroom) in which all parties might be seriously damaged.

Conclusion:

Mediation is being used successfully in helping people resolve everything from schoolyard disputes to international conflicts. It works because it enables people to hear each other and work out their own disputes in a safe environment with neutral assistance. It works because it de-emphasizes guilt and punishment and emphasizes understanding and creating a plan for how people will get along in the future. (As JFK said, “Our task is not to set the blame for the past, but to set a course for the future.”)

It works because most people in conflict (and in this case, their employers as well) are motivated to reach an agreement without taking the fight to another level (such as court), which inevitably brings with it much greater cost, much greater animosity, damaged relationships, and the risk of embarrassing public scrutiny.

Mediation in the workplace deals with conflict in the most sensible and effective way, while being private and inexpensive. That’s just good business.

                       

John Bertschler

Dr. Bertschler is a psychologist and mediator in private practice. He is co-owner of Northcoast Conflict Solutions, Independence, Ohio, dedicated to “Making peace , one person at a time.” In his therapy practice, Dr. Bertschler specializes in mood disorders, marital and relationship issues, parent-child conflict, crisis intervention, and life transition… MORE >