Stopping The Snowball Effect: Early Intervention Mediation In The Workplace

An employee is reprimanded for a minor error. The supervisor
considers the matter closed and moves on to the next task.

The employee, feeling offended and put-upon, ponders
underlying motivations for the discipline. The conclusion he arrives at is that
some discriminatory animus was at the heart of the confrontation.

A face-to-face discussion at this point could often clear
things up, yet the management official is completely unaware of the situation.
Before long, the employee files an EEOC action.

Management’s response at this juncture can make all the
difference between a quick and economical resolution and costly litigation.

Many companies are examining early intervention mediation as
a way to avoid becoming embroiled in employment problems. Cases involving
employment law differ from those in many other areas.

For example, in a personal injury case, the harm is usually
most severe at the time of the occurrence and gradually resolves over time.
However, in employment situations, the harm at first may be slight, often
merely a perceived insult. Over time, this small instance may affect an
employee’s perception of future actions, leading to an increasing level of
anxiety and causing other actions to be viewed as discriminatory in nature.

In addition, as the situation festers, it becomes
increasingly likely that other employees will become aware of the situation and
also wonder if they may also be being treated unfairly.

Mediation, offered as an early choice to employees seeking
to file an EEO claim, is an effective way to allow an open discussion of the
situation and often results in a quick resolution. At this early stage,
claimants are often not even seeking monetary damages but merely an opportunity
to be heard.

‘Transformative’ Mediation

The current trend towards “transformative” mediation in
these settings is partly due to its heavy emphasis on open discussion between
the parties.

Transformative mediation, a process based on the work of
Robert Baruch Bush and Joseph Folger in their seminal text, “The Promise of
Mediation: Responding to Conflict through Empowerment and Recognition”
(Jossey-Bass, 1994), emphasizes a party-driven approach to conflict resolution.
The session is often described as a “conversation”, rather than a hearing or
negotiation. By relinquishing control of the process to the parties, the
transformative framework achieves a positive effect on parties who are feeling
powerless.

In 1998, transformative mediation moved from theory to
widespread application when the U.S. Postal Service embraced it for handling
EEO complaints.

Assembling a nationwide panel of over 1,500 mediators,
trained in the transformative style, the Postal Service began offering
mediation at a very early stage to employees seeking to file an EEO complaint.
The results have been overwhelmingly positive. Not only have vast numbers of
cases resolved in mediation, usually with a non-monetary settlement, but also
many others have not been pursued to a formal complaint. There has also been a
systemic effect reducing the numbers of new complaints coming into the system.

What lesson can the Postal experience teach corporate
America?

The first lesson is that employment issues tend to be
easiest to resolve if tackled quickly. Simple matters of miscommunication can
be cleared up before they “snowball” into more serious situations that can
affect workplace morale and productivity. The challenge becomes developing a
way to identify these instances as soon as possible.

An internal mediation program available to all employees
must be made common knowledge to the workforce. Program coordinators or human
resource personnel need to really make an effort to educate employees on the
benefits and availability of mediation. Also, management needs to understand
that being brought into mediation by an employee is a far better option that to
have problems festering of which they are unaware.

Many larger companies are looking at the economic benefits
of creating in-house mediation programs. Employment cases can be costly to
litigate, even when the company eventually wins. In addition, the potential
damage to workplace morale is difficult to measure.

Businesses often utilize independent ADR firms to help
initiate such a program. Outside ADR firms are well equipped to help coordinate
the rollout of an in-house program, both in terms of providing education and
training and also providing rosters of available mediators.

Companies dealing with a large workforce can realize
improved productivity and decreased litigation costs by incorporating an internal
mediation program. If the current trend continues, it is quite possible to
envision mediation as a standard element of most human resource departments. At
this point, it is clear that transformative mediation deserves a closer look.

David F. Babik is a senior case manager at ADR/Equimar in
Boston. A graduate of Boston University Law School, he works directly with
management personnel in implementing in-house corporate mediation programs for
ADR/Equimar, Inc. He can be reached at [email protected].