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Employment Discrimination Lawsuits
Employment Mediation in the Twenty-First Century:
Challenges in a Changing Environment
III. Mediation in the Workplace: Potential Objections And Best
Practices
Thus far, I have contended that mediation of employment
conflicts is generally salutary and, as compared with litigation,
definitely preferable. In addition, I have argued for early mediation,
which largely translates into mediation on the job, extending to
all, or virtually all, employment-related controversies, not just
to alleged discrimination. Promptness and unlimited access,
therefore, constitute two fundamental best practices in this area.
It has been suggested, however, that restricting an ADR program's
stated jurisdiction to complaints of discrimination need not narrow
the scope of the actual proceeding. For example, respecting REDRESS,
CPR notes that even though a postal worker initiates the process
by getting in touch with an equal employment opportunity specialist,
"in practice the claims addressed under the program are not
[so] limited." [FN247] This
accords with my own experience. Indeed, in all of my non-workplace
mediations, I try to deal with the parties' concerns as problems
rather than causes of action. Occasionally, this "pure"
mediation approach works very well--resulting in productive dialogue
and some degree of both empowerment and recognition.
Yet, as I have previously remarked, once the parties resort to
the EEOC or the courts (especially the latter), it is much harder
to get them to take a broad, integrative, non-legalistic, and interest-based
approach to their differences rather than a narrow, distributive
position. I also strongly believe in the value, pragmatic and moral,
of "truth in charging." Thus, while I support mediation
in any guise, I continue to believe that access to it should not
be conditioned on the filing of a discrimination complaint, nor
should its content even nominally be constrained by pressure to
adhere to an equal employment opportunity agenda.
Best practices for employer-sponsored mediation can most usefully
be considered by reference to two fundamental objections to ADR.
I view the topics as interwoven, since one can persuasively respond
to the criticisms by structuring mediation programs in ways that
satisfactorily address both of them. These global dissents from
ADR, [FN248] and
the responses to them, occupy a considerable number of pages in
the professional literature; I need not rehash them in depth here.
First, some critics believe that the informality
of ADR "disadvantages 'weaker' parties" (often, women
and members of minorities), whereas the "formality of adversarial
adjudication deters prejudice" and serves to even the balance
of power. [FN249] The
second argument is that ADR "deflects energy away from collective
action" and "promotes law without justice." [FN250]
With respect to the first contention, I agree that, in certain
settings and in certain classes of cases, the disparity of power
between the disputants will be so great as to militate against
mediation. [FN251] For
example, domestic violence situations inherently pose so serious
a danger of exploitation of the victimized party (usually a woman)
that many mediation programs exclude these wholly from their purview. [FN252] Furthermore,
as a mediator, I would decline or withdraw from individual matters
where I perceived that a participant was laboring under a disability,
such as mental retardation or severe emotional illness, that might
impede him from understanding or protecting his interests. [FN253] This
reservation would naturally apply whether or not the conflict arose
in a workplace context.
Focusing on employment mediations generally, I believe that they
do entail some power imbalance in favor of defendants. By statutory
definition, the employer must have a minimum of fifteen employees
under Title VII [FN254] and
the ADA [FN255] or
twenty under the ADEA; [FN256] most
corporate defendants are many times larger. The plaintiff is usually
a single person. Also, the company frequently profits from being
a "repeat player" in mediation [FN257] and
from its ability to hire superior legal assistance. [FN258] That
being said, I see no reason to assume that most such mediations
suffer from crippling inequalities. [FN259] I
say "assume" because of the dearth of empirical studies
focusing on the existence or effects of the power differential
in employment cases. [FN260] The
average worker hardly stands in the same position in relation to
her firm as the average victim of spousal violence stands in relation
to her abuser.
And to the extent that there are inequalities with adverse impacts,
one must ask: "Compared to what?" Many critics of ADR
indulge in the fantasy of "litigation romanticism," [FN261] failing
to consider the ways in which formal adversarial proceedings, in
courts or agencies, handicap the weaker party--often, to a much
greater degree. However unfairly she may have been treated, the
employee, as we have noted, often lacks a viable discrimination
claim that will survive legal scrutiny. Even if she does have such
a claim, and even with adequate representation, the plaintiff's
side may well be outgunned by a stronger defendant with the resources
to cause delay and inflate expenses. In addition, the employee
may have pressing financial needs. Getting a swift, if typically
non-monetary, remedy for workplace problems while still on the
job may present a more welcome alternative to the complainant than
rolling the litigation dice in hopes of obtaining sizable damages
years later. The supposed benefits of litigation count for little
if the plaintiff cannot stay the course. Accordingly, "[i]n
an imperfect world, mediation with its own imperfections begins
to look better." [FN262]
But most important, companies that wish to adopt best practices
can, and should, design their mediation programs so as to level
the playing field quite substantially. For one thing, firms may
choose to subsidize the neutral's fees and administrative costs.
Many do, in whole [FN263] or
in part. [FN264] That
is certainly appropriate, especially with regard to those employees
not receiving high salaries. [FN265]
An even more salient equalizer would be counsel for the complainant. [FN266] Thus,
the company should allow the employee to have an attorney represent
him in the mediation session and any related negotiations. [FN267] Yet
that minimalist approach does not help the employee who wants,
but cannot afford, a lawyer. At this early stage, counsel would
likely reject a contingent fee arrangement; if the matter is promptly
settled, the client will typically obtain little or no money. [FN268] To
address this problem, some employers offer legal assistance plans
that pay for all or most of the worker's legal expenses in mediation, [FN269] but
most companies require employees to pay their own legal costs. [FN270] In
an interesting wrinkle, the General Electric Company conditions
its offer of monetary aid on the mediation's success. [FN271] Depending
on one's enthusiasm for achieving settlements, one might view this
strategy as a useful incentive or as a form of undue pressure.
Finally, there are firms that give half a loaf of equalization:
while declining to finance employees' counsel, they do not bring
their own lawyer to the table unless the complainant is represented. [FN272]
Since power imbalance is surely greatest in cases of lopsided representation, [FN273]I
prefer the "both or neither" approach to counsel to a
system that tolerates unilateral legal support. This type of asymmetry
also creates difficulties for the mediator. If he attempts to compensate
for the inequality by assisting the employee, he risks the loss,
real or perceived, of his neutrality. [FN274] Despite
disclaimers, the worker will tend to see the neutral as her own
attorney; and if the mediator is not careful, so will the employer.
Further, any evaluative statements by the mediator may exert an
undue influence on the complainant. But if he does not make such
statements, the employee may fail to comprehend her options, harbor
unrealistic opinions respecting the merits of her claim, or view
the process as unfair. [FN275]
The best practice, however, would be for the firm to provide
the whole loaf (or most of it) and subsidize mediation counsel
for employees, at least up to a reasonable amount. While large
companies will generally find these costs easier to bear than small
ones, even the latter might deem it advisable to take this approach
when they compare the relatively modest outlay required for mediation
with the expenses of litigation.
Significantly, the adverse effects of a power imbalance are not
the only considerations. Although an employer might intuitively
hesitate to foster worker representation, the CPR study states
that program administrators feel no such reluctance. [FN276] They
believe: "[T]he involvement of competent plaintiff's counsel
often makes proceedings more efficient, increases employee sophistication
in assessing options, makes administrative matters . . . easier,
and results in greater employee satisfaction." [FN277] I
agree. Even if the complaint does not implicate legal rights, a
lawyer can furnish invaluable aid in attaining resolution. Indeed,
the more a worker feels that having counsel has placed her on an
equal plane with her employer, protecting her interests from invasion,
the greater the chance of a durable settlement.
Another desirable, leveling feature of many company mediation
plans is the use of outside neutrals, provided by organizations
like the American Arbitration Association, JAMS/Endispute, or CPR. [FN278] Evaluators
of thewell-regarded REDRESS program
found that external mediators ranked higher than internal ones,
in terms of both settlement rates and party contentment. [FN279] These
results are unsurprising; even if in-house mediators can be fair,
outside ones are more likely to seem so to the worker. [FN280] Companies
further enhance the appearance and the reality of fair process
when they permit the employee to participate in choosing the mediator.
Such latitude makes good sense; especially if the employer pays
the mediation outfit's fees, the employee might otherwise fear
that the mediator will not be impartial. Major corporations with
this approach include Texaco, [FN281] GE
Capital, [FN282] and
United Parcel Service (UPS). [FN283] Also,
whatever the source of their roster, employers should ensure that
it embraces people of diverse backgrounds. [FN284]
Adoption of these best practices ought to go far to defuse the
power-imbalance concern in employer-employee mediation. This apprehension
operates at the micro-level, that of the individual case. As mentioned
previously, however, [FN285] ADR
critics have frequently cited a second, macro-level concern; they
claim that these dispute resolution methods act to privatize justice,
thereby failing to enforce accountability to public norms. [FN286]
With respect to employment disputes specifically, some contend
that mediation--by training its sights
on personal interests and satisfaction--leaves the surrounding
discriminatory environment the same or, at best, makes minor corrections
of limited impact, such as transferring the employee to a different
department. [FN287] According
to Professor Sturm, ADR "rarely generates information or addresses
practices that extend beyond the participants in the immediate
dispute . . . ." [FN288] Further,
with the sessions themselves being confidential, and with employers
routinely insisting on confidentiality clauses in settlement agreements,
mediation fails to create precedents, thereby preventing desirable "public
stigmatization of discriminating employers." [FN289]
This critique has some merit. Litigation will be needed at times:
in-house ADR regimes may not be able to respond to widespread,
serious problems, especially if management is intransigent. [FN290] While
parties can theoretically negotiate systemic solutions, as well
as money, reinstatement, references, or other terms geared solely
to the employee's requirements, I have mainly found employers unwilling
to agree to broader remedies (for example, diversity training)
at the behest of a lone complainant. [FN291] Surely,
too, certain cases ought to go through trial and appeal so as to
create significant law to guide and bind interested persons in
the future. By analogy, one would not have wanted Brown v. Board
of Education [FN292] to
be resolved by a mediated settlement addressing only the issues
of the named plaintiffs.
That being said, some companies will not have mediation programs;
even in the firms that do, fewer than all disputes will settle. [FN293] I
cannot envision a time when courts will have to beg for work, especially
in the employment area. Also, the EEOC, as well as private parties
(ordinarily through class actions), will, presumably, continue
to bring lawsuits challenging a "pattern and practice"
of illegal conduct. [FN294] It
is primarily in these settings that systemic change can occur,
whether by judicial decree alone or wide-ranging settlement terms
embodied in a consent decree. Notably,
REDRESS came into being as part of a class action settlement, [FN295] as
did Home Depot's new and improved hiring, promotion, and training
plan [FN296] which,
incidentally, resulted from a mediation ordered by the court on
the eve of trial. [FN297] Mediation
can, therefore, play a useful part in resolving big cases as well
as small ones. At times, too, the EEOC can achieve reform through
internal proceedings by jawboning the targeted employer in its
conciliation process. [FN298]
Moreover, in taxing ADR with its limitations, we must once again
recall that the proper comparator is litigation, not some hypothetical,
idealized state of affairs. One should start from the baseline
that, in general, advocacy for workers tends to be "individualistic,
compensatory, and focused on after-the-fact enforcement of rule
violations." [FN299] With
or without mediation, the vast majority of disparate treatment
actions that survive dismissal will end in settlement, not in judgment,
and non-mediated agreements are no less likely than mediated ones
to contain a confidentiality clause. Thus, if mediation results
in privatized justice, litigation does as well--only much later,
and at greater expense to all.
The "macro" critique of mediation assumes a discriminatory
job environment. This cannot always be the case, unless we presume
that all workplace conflicts involving persons in protected classes
(or, at least, racial minorities) arise in whole or in part from
unconscious discrimination. And even if we did so, litigating unprovable
bias will not lead to the plaintiff's victory. Will it lead, nonetheless,
to reforms? Smart employers, including those that prevail in court,
will learn that certain changes may be required in order to minimize
the risk of future suits, as well as discrimination itself, and
will, therefore, effectuate them. But since litigation usually
hardens people's attitudes, other defendants taken to court by
employees might become less inclined to remedy institutional problems
on their own.
In addition, the establishment of an in-house mediation program
and, more broadly, the steps leading up to and following it can
also generate information with respect to workplace issues. Another
best--indeed, vital--practice is for sponsors of such programs
to establish procedures to ensure that the firm learns what types
of situations are generating trouble and then to address these
promptly and fully. Regardless of whether the triggering event
reflects discrimination or some other disturbing condition, management
must respond to it by doing more than just placating the actual
complainant.
First, the company representative directly involved in the mediation
has to extract from the case at hand general lessons concerning
proper and improper managerial conduct. Among other things, the
discussions occurring during the session may cause that person
to scrutinize the firm's, or his or her own, decisionmaking process
and notice hitherto unseen flaws. [FN300] The
representative must, in turn, keep higher executives, with power
to effect more global changes, "in the loop" regarding
the kinds of circumstances giving rise to worker grievances. Although
the rule of confidentiality would typically prevent disclosure
of what took place in the mediation, supervisory personnel will
know beforehand the employee's charges and the data gleaned from
the initial inquiry. In the words of the program facilitator of
PaineWebber's Issue Resolution Office: "Whenever any form
of discrimination is brought to our attention, we have a duty to
investigate." [FN301] This
obligation ought to extend to non-trivial complaints unrelated
to bias as well.
The firm can also design its program such that a limited number
of people with "need to know" status, who did not attend
mediation sessions, will be informed of facts required to carry
out a settlement agreement or to correct workplace problems that
go beyond the specific complaint. The former is necessary to the
worker's own well-being. The latter, a suggestion I offer with
some diffidence, impacts the overall health of the company. As
the PaineWebber facilitator notes: "I routinely do a trend
analysis to see whether there are patterns that should trigger
further investigation. . . . I would find a way to make sure that
we address any significant problem." [FN302]
The employer's reservation of a right to expand the circle of
confidentiality in order to further the interests of its whole
work force should not ordinarily entail a significant compromise
of the complainant's privacy. Even absent such a provision, some
complainants might be willing to waive confidentiality to the extent
that doing so would enable the employer to rectify undesirable
conditions. Alternatively, in a large company, the manager attending
the mediation may be able, where necessary, to report information
culled from it in a way that conceals the participants' identities.
Employers, moreover, have to be taught to move beyond merely
responding to worker complaints. They must learn to take the initiative
to uncover workplace issues that, as yet, have not surfaced through
accusations. The CPR study states that "[d]ispute management
is fundamentally a managerial, not
legal, task--yet managers remain reactive." [FN303] All
of the systems they describe "rely solely on the employee
to identify problems and bring them to management." [FN304] This
is plainly far from ideal. Happily, though, some companies have
gotten the message that they must take a proactive stance; [FN305] others
will do the same, over time, if only to protect themselves from
suit. [FN306]
As a number of scholars in the field have noted, recent decisions
of the United States Supreme Court have lent desirable impetus
to increased employer self-regulation. [FN307] In
1998, two decisions concerning charges of hostile-environment harassment,
Burlington Industries, Inc. v. Ellerth [FN308] and
Faragher v. City of Boca Raton, [FN309] created
an "affirmative defense to liability or damages"
in cases that do not involve a so-called tangible employment action
like termination or demotion. The defense was described as comprising
"two necessary elements: (a) that the employer 'exercised
reasonable care to prevent and correct promptly any sexually harassing
behavior,' and (b) that the plaintiff employee 'unreasonably failed
to take advantage of any preventive or corrective opportunities
provided by the employer or to avoid harm otherwise."' [FN310]
Shortly thereafter, the Court adopted a similar approach with
respect to punitive damages. [FN311] In
Kolstad v. American Dental Association, [FN312] involving
actions by managerial agents, the Court hedged an employer's liability
for such damages by establishing an affirmative defense that these
actions were contrary to good-faith efforts by the employer
"to detect and deter" discrimination. [FN313]
Given these developments, the time
is ripe for corporate self-interest to ally with corporate good
citizenship to yield a more wholesome working atmosphere founded
on adoption of effective employment dispute resolution processes. [FN314] Mediation,
in particular, accords well with the less hierarchical, team-based,
consensus-building, and cooperative model increasingly embraced
by progressive firms. [FN315] That
reality should only serve to accelerate the trend toward its use
in the modern workplace.
Back to beginning of Section
III
See also Introduction, Section
I, Section II, and Coda
IV. Coda
In the post-9/11, economically and physically perilous world,
Americans are suffering tremendous stress. Whether one's work contributes
to or allays that stress has great impact, now more than ever,
on the quality of one's life. I believe the approach to workplace
dispute resolution set out in this article can, as many employers
have already realized, not only shield them from litigation by
employees past and present, but also make the job environment happier
for all.
Once again, let me be clear on a major point: by recommending
that mediation of employment conflicts not be tethered to the peg
of unlawful discrimination, I in no way mean to suggest that the
working world is free from bias. Nor do I wish to sweep such bias
under the rug. When an employee in good faith believes his employer
has treated him discriminatorily, he should say so, laying out
his grounds for suspicion. And if the company, informally, through
mediation, or some other type of ADR, does not satisfactorily resolve
the matter, then the employee may file a charge with the EEOC (or
equivalent state or local agency) and, if need be, go to court.
Nothing, of course, can ensure that employers receive only plausible
claims of bias; the employee may frame his complaint as he sees
fits. But dispensing with the need to affix the label "discrimination"
to conduct perceived as wrong or unfair in order to be heard by
a neutral party should--over time--diminish the temptation to make
protected categories the centerpiece of every grievance and, thereby,
reduce the harmful consequences of this practice.
Professor Estlund writes of the "mediating role of the workplace." [FN316] Her
terminology refers not to actual mediation but rather to the role
which the modern diverse workplace can play in overcoming group
divisions. As she points out, it represents
the
"single most important site of cooperative, interaction and
sociability among adult citizens outside the family." [FN317] Yet
in all too many places, that sentiment is more aspirational than
descriptive.
This article reflects the belief that if employers deal with
workers' problems humanely and sensibly while these are still "acorns,"
and not yet "oaks," many more jobs will provide the harmonious
setting that Professor Estlund envisions, racially and otherwise.
Mediation of employment disputes, structured along the lines I
have outlined, offers much promise as a route toward achieving
that worthy end.
Back to beginning of Section
III
See also Introduction, Section
I, Section II, and Coda
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