A terrific presentation at last week’s Congress of the International Academy of Law and Mental Health in New York served as a stark reminder that in the U.S., we often design “preventive” programs and procedures more to avoid liability than to nurture psychologically healthy organizations.
Nicky McWilliam, an Australian lawyer and doctoral student at the University of Technology at Sydney, presented her research on a school peer mediation program. Here’s Nicky’s abstract of her presentation:
In the author’s doctoral study, it is proposed that Therapeutic Jurisprudence also underpins school peer mediation programs and the peer mediation process. This study into a school peer mediation program investigates how a school peer mediation program and peer mediation process can be seen to function as therapeutic agents which affect the wellbeing of all constituents in the school environment. The school environment can be seen as a microcosm of larger society and therefore a pure source to study. Insights from this study will have implications for processes within the legal system, in terms of both evaluation and development.
Nicky’s summary of her data along with short film clips of interviews with students and educators (including some remarkable comments from young students) demonstrated the positive effects of a peer mediation program in resolving conflicts, preventing conflicts, and educating students about how to address their differences without resorting to fights or formal procedures.
The comparison to the standard-brand way in which we often view conflict resolution in the U.S. could not have been more stark: In our country, the driving force behind organizational conflict resolution programs is avoidance of liability. This means that policies, procedures, and educational initiatives are frequently immersed in considerations of the law, often to the neglect of the human side of the equation. I’ve seen it with school bullying programs, and I’ve seen it with sexual harassment programs.
Indeed, as much as I believe that we need to enact protections against workplace bullying, I know that when this comes to pass, too many employers — taking advice from employment lawyers — will implement policies and programs designed to minimize liability risks rather than to create healthier work environments.
For my earlier post on this conference: https://newworkplace.wordpress.com/2009/07/02/towards-good-lawyers-and-good-law/
Minding the Workplace 
The emphasis on minimizing liability is unsettling. Early disclosure by physicians to avoid medical malpractice litigation is another example. “Hey, let’s use this ’empathy’ concept to our advantage!” As a mediator/conflict consultant, I attempt to facilitate a process that supports digging deeper to discover interests and to understand the difference between interests and positions. There’s something disingenous about promoting a position under the guise of an interest.
Debra, thank you for your comment. Yes, manufactured empathy is merely another manipulative practice that often reveals itself for what it is…eventually.