Vivian Berger Mediator

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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