A recent article (link below) in the Richmond Times-Dispatch by Karen Michael discussed efforts by the Equal Employment Opportunity Commission (EEOC) to encourage mediation after receiving a charge of discrimination. The article cited several benefits to employers who engage in mediation of discrimination complaints through the EEOC’s program.
The article makes some excellent points concerning the value of mediation. But once a current or former employee files a charge with the EEOC, there’s a good chance the employee has already retained an attorney, which means the potential for litigation, and the cost to resolve the dispute, will be greater than if the dispute had been resolved before a charge was filed. Accordingly, if an employer sees value in mediation, don’t wait to mediate until after charges have been filed with the EEOC. Instead, employers should consider the benefits of preventative workplace mediation; that is, using a neutral outside mediator to try and resolve discrimination complaints internally as soon as they come to management’s attention.
Of course, the question many companies may ask is, why bother hiring a neutral outside mediator? Can’t HR mediate workplace disputes on their own? The problem is that, assuming a company is large enough to have an internal HR staff, the HR managers may not be trained in mediation. And even if they have undergone such training, they still work for management, and thus it is unlikely employees will trust them to remain impartial and confide in them. Indeed, if the HR executive assigned to mediate is an attorney, state rules of professional conduct will obligate him or her to disclose to the employee that, as in-house counsel, he or she represents the company, and not the employee, and accordingly, their conversations will not be confidential.
Further, HR managers may find it difficult to remain objective, especially if they personally know some or all of the parties involved. For example, they may take an employee’s attacks on a professional colleague personally, and devalue the employee’s perspective rather than validating it. Such knee jerk reactions are likely to exacerbate the dispute rather than defuse it.
Moreover, the principle of confirmation bias teaches that, to the extent a discrimination complaint resulted from weaknesses in HR policies and practices, HR managers may find it difficult to acknowledge that the procedures they implemented are flawed and need to be corrected. Instead, they are more likely to defend their work, and view the employee as the problem.
As a neutral, mediator addresses these barriers to resolution:
No Conflicts of Interest
A mediator has no allegiance to either side, and thus no conflicts of interest. This unique status eliminates any constraints on the mediator’s ability to speak in confidence, and build trust and rapport, with both sides.
No Endowment Effects
A mediator does not bring any baggage to the table in terms of a vested interest in defending how the company has done things in the past (often referred to as an endowment effect). Further, if the mediation exposes flaws in the company’s HR policies, the principle of reactive devaluation teaches that HR managers are much more likely to be receptive to constructive feedback shared with them confidentially by a neutral mediator than criticisms coming from an employee who is a potential adversary.
Managing High Conflict Personalities
To the extent one of the parties has a high conflict personality, mediators are trained to regulate their emotions when dealing with such individuals. They consciously avoid taking difficult behavior personally, and can redirect the mindset of high conflict individuals away from blaming towards problem solving.
A company may also genuinely value the talents and skills of an employee who has complained, and want to maintain a positive relationship with him or her, and not want to lose the employee over an unfortunate incident that can be quickly and easily resolved. If so, mediation offers the best (and perhaps last) opportunity to prevent the relationship from deteriorating and becoming adversarial (which is the likely outcome once the employee hires an attorney).
Using mediation to prevent discrimination complaints from becoming adversarial also protects the morale of other employees. In particular, an employee who complains of discrimination may have allies within the company who are quietly rooting for them (and will take their side in any litigation). Indeed, there may be other employees who experienced the same form of discrimination who are watching and waiting to see how their colleague’s situation plays out. A long, drawn out battle will surely sour other employees on management. In contrast, a company policy of making sincere efforts to promptly mediate discrimination complaints internally sends a message to all employees that the company genuinely values its relationships with them and wants to quickly and satisfactorily resolve any incidents that arise so all the relevant parties can resume working together cooperatively to further the best interests of the business.
Low Out of Pocket Cost Relative to Litigation
To be sure, utilizing an outside mediator requires an investment. But the out of pocket expense will be far less (by orders of magnitude) than the legal fees that will accrue (and damages that may need to be paid) if the dispute is not nipped in the bud at an early stage and instead proceeds to litigation.
No Adverse Publicity
There are also the intangible costs of employment litigation. Among other considerations, there is the potentially negative impact on employee morale, and the adverse publicity that often accompanies discrimination lawsuits, which can lead to reputational damage that hurts a company’s ability to recruit new talent. In contrast, mediation offers an opportunity to resolve disputes quietly without any negative publicity or adverse impact on employee morale.
Does Not Preclude Investigation
It should also be stressed that mediation does not preclude a company from undertaking its own thorough internal investigation of any complaint, which is a best practice any time an incident of discrimination comes to management’s attention. To the contrary, the factual record developed during an investigation can be shared confidentially with the mediator (without waiving any privileges) to help him or her better understand how the dispute arose and more effectively assess the options for resolution.
To realize the benefits of mediating workplace disputes, companies can incorporate clauses into their employment contracts and/or employee handbooks requiring parties to first mediate any employment-related disputes before commencing legal action or proceeding to arbitration; new employees must indicate their acceptance of such clauses by signing appropriate documentation before commencing employment. Management just needs to make sure such clauses are enforceable (a topic we discussed in a prior post).
We invite readers to share their experiences using preventative mediation in connection with discrimination complaints or other workplace disputes.
For the Richmond Times-Dispatch article cited above, click here.