Restorative justice and workplace bullying

Law professor Susan Duncan (Louisville) provides some thought-provoking ideas about the use of restorative justice practices in workplace bullying prevention and response in a 2011 law review article published in the Industrial Law Journal.

Restorative justice practices, states Duncan, attempt to bring together victims and offenders to discuss the harms done and “to work to identify ways to make amends and repair the relationships.” They are being tested and applied especially in criminal justice, domestic relations, and educational settings.

Duncan proposes that they be applied to the workplace, especially to addressing bullying.  For employers, she sets out a multifaceted agenda that includes conducting workplace audits to assess “violence vulnerability,” developing “creative methods to build community and help prevent bullying,” implementing written policies concerning bullying and respect, training employees “on restorative principles and practices,” and conducting empirical studies to evaluate the effectiveness of restorative justice practices at work.

A way forward?

Many of Professor Duncan’s recommendations are consistent with ideas advanced in this blog; indeed, she wrote the piece partially in response to an invitation I issued to legal scholars in a 2010 law review article to incorporate therapeutic jurisprudence approaches to the development and practice of employment law.

Unfortunately, the core notion of restorative justice – genuine dialogue over harms done and repairing frayed work relationships — remains foreign to many employers, their HR staff, and employment lawyers representing both management and workers. Adopting these ideas would require a considerable rethinking of how employment conflicts and disputes are resolved.

The possible use of restorative justice practices to address workplace bullying is undercut by the absence of legal protections, giving employers scant incentive to apply them to abusive behaviors that often are completely legal. In the U.S., enactment of the Healthy Workplace Bill could make restorative justice approaches more attractive to employers.

***

Professor Duncan’s article, “Workplace Bullying and the Role Restorative Practices Can Play in Preventing and Addressing the Problem,” Industrial Law Journal (2011) may be downloaded without charge here.

Part II: What should lawyers know about psychology?

In my last post I gave some examples of how insights from psychology can help lawyers to serve their clients and society more effectively, and I promised a short book list of helpful titles. The list turned out to be longer than I anticipated, and I added some other suggestions as well!

But that’s all good news. It means there are many ways to dive into these topics. I won’t claim to have read everything below cover-to-cover, but I’ve spent enough time with each to make a positive recommendation. Here goes:

FOR LAWYERS AND LAW STUDENTS

For lawyers and law students who are interested in how legal practice can integrate insights from psychology and counseling, the following make for a useful core collection of works. There’s some overlap among these books in terms of subject matter and chapter authors, but I wouldn’t consider that a problem.

Susan L. Brooks and Robert G. Madden, eds., Relationship-Centered Lawyering: Social Science Theory for Transforming Legal Practice (2010).

Susan Swaim Daicoff, Comprehensive Law Practice: Law as a Healing Profession (2011).

Marjorie A. Silver, ed., The Affective Assistance of Counsel: Practicing Law as a Healing Profession (2007).

Dennis P. Stolle, David B. Wexler, and Bruce J. Winick, eds., Practicing Therapeutic Jurisprudence: Law as a Helping Profession (2000).

J. Kim Wright, Lawyers as Peacemakers: Practicing Holistic, Problem-Solving Law (2010).

Related websites

The International Network on Therapeutic Jurisprudence includes a continually updated bibliographical database of relevant law review articles and publications.

Cutting Edge Law offers a wealth of information on alternative, holistic approaches to legal practice.

The American Psychology-Law Society is a division of the American Psychological Association.

Continuing legal education

The new Integrative Law Institute offers courses, workshops, and programs on law as a healing profession.

For those who want to dig deeply into mental disability law, New York Law School offers online graduate and certificate programs.

INFORMAL COUNSELING

Eugene Kennedy and Sara C. Charles, On Becoming a Counselor: A Basic Guide for Nonprofessional Counselors and Other Helpers (3rd ed. 2001) is a very helpful introduction to mental health issues commonly encountered by those in helping professions.

TEXTBOOKS

Textbooks get a bad rap from educators and students alike, but good textbooks can lay out a topic with breadth and depth. I’m happy to recommend any recent editions of the following:

Barbara R. Bjorklund, The Journey of Adulthood.

Frank J. Landy and Jeffrey M. Conte, Work in the 21st Century: An Introduction to Industrial and Organizational Psychology.

David G. Myers, Psychology.

David G. Myers, Social Psychology.

Susan Nolen-Hoeksema, (Ab)normal Psychology.

GENERAL CONTINUING EDUCATION

Coursera offers free online courses taught by professors at schools around the world. A number of psychology offerings are part of their current catalog.

The Great Courses a/k/a The Teaching Company sells digitally recorded courses on various topics featuring leading professors, including psychology and related subjects.

GENERAL PERIODICALS

Scientific American Mind gets top marks for high quality, readable articles.

Psychology Today has become a tabloid version of Scientific American Mind, but it hosts an excellent array of blogs.

Part I: What should lawyers know about psychology?

Back in the day, one year of law school was sufficient to teach me that the law and our legal systems struggle mightily with issues of psychology: Too messy, too “subjective,” too touchy-feely. As a callow young man with a lot of growing up to do, I pretty much bought into that mindset.

But let’s fast-forward a bit: Over the past dozen years or so, I have come to regard psychology as one of the most important disciplines for understanding how our laws, legal systems, and the legal profession should operate. I have eagerly aligned myself with the therapeutic jurisprudence (“TJ”) movement, which encourages us to seek psychologically healthy outcomes in legal matters. As political writer and lawyer Mark Satin put it in a piece praising TJ, it’s “time for the U.S. justice system to become less mechanistic and more compassionate.”

Specifics?

Beyond that general embrace, however, what should lawyers know about psychology? I don’t think it’s necessary for lawyers to head back to school to pick up a psychology or counseling degree. But I do think some concentrated study, either independently or through some type of continuing education, would be helpful. Here are three specific examples:

Criminal law — As all too many recent tragedies have confirmed, our criminal justice system often must address mental health issues of defendants. The field of psychopathology — mental disorders and injuries — can lend valuable insights to prosecutors, defense counsel, and judges.

Employment law — The best employment lawyers combine legal expertise with a sound understanding of the dynamics of the workplace. The basics of organizational psychology can help employment lawyers provide legal counseling and advice grounded in the modern realities of employee relations.

Family law and trusts & estates law — Family lawyers and trusts & estates lawyers render assistance to clients during critical junctures of their lives. Understanding the psychology of lifespan development can make these attorneys more sensitive to their clients’ needs.

Client counseling, too

And there’s client counseling in general. These skills are much more likely to be emphasized in a social work program than in a law school, but after hearing endless stories from clients about lawyers’ poor “deskside manner,” I think that at least a dose of counseling psychology would benefit attorneys as well. The bulk of law school is spent on memorizing legal rules and principles and applying them to static sets of facts, and the human side of legal practice often is badly neglected.

Next up

In Part II, I’ll offer a short list of books that may prove helpful to lawyers and law students who want to incorporate psychological insights into their work.

***

Of possible interest

I’ve written two law review articles expressly built around ideas of therapeutic jurisprudence. They can be freely accessed here:

Therapeutic Jurisprudence and the Practice of Legal Scholarship (University of Memphis Law Review, 2010).

Employment Law as if People Mattered: Bringing Therapeutic Jurisprudence into the Workplace (Florida Coastal Law Review, 2010).

***

Follow-up post

For Part II of “What should lawyers know about psychology?,” a list of helpful books and other resources, go here.

Employment lawyers and workplace bullying

How has the emerging American legal response to workplace bullying started to impact the legal profession? Here is a collection of posts examining the relevance to employment lawyers representing workers and employers alike:

1. Corporate Counsel: Taking workplace bullying legislation seriously (2012) — The possible enactment of the Healthy Workplace Bill has gone from pipe dream to reality.

2. When bad employers retain thuggish employment lawyers (2011) — The worst employers seem to be magnets for the most obnoxious employment lawyers.

3. Workplace bullying legislative movement prompts changes to employer liability insurance practices (2011) — When insurers get into the game, you know there’s an impact.

4. Workplace bullying laws are “just a matter of time,” says New York Law Journal (2011) — Reporting on a piece in the influential daily newspaper of the legal profession in New York.

5. Workers, their lawyers, and workplace bullying (2009) — How lawyers for workers can help their clients, even within the current limitations of the law.

6. Employers, their lawyers, and workplace bullying policies (2009) — How lawyers for employers can counsel their clients toward productive and healthy workplaces.

eBossWatch’s 2012 list of top employment lawyers

eBossWatch, the popular and feisty online site that allows workers to evaluate their bosses and workplaces, has announced its 2012 list of the top employment lawyers:

These top workplace harassment and discrimination attorneys have successfully represented and obtained significant financial awards for their clients, employees who alleged that they were subjected to a hostile work environment, discrimination, harassment, and/or retaliation in the workplace.

You can access the full list here. The individual listings link to news stories about the successful claims that led to their inclusion on the top 100 list.

Great, but also…

I’m delighted that eBossWatch is highlighting the work of plaintiffs’ employment lawyers who are getting successful results for their clients. In addition, while the list identifies attorneys who certainly are worthy of inclusion, we should take these points under consideration:

1. Many of the best settlements of employment lawsuits (from the worker’s perspective) are not made public. Therefore, attorneys who truly delivered for their clients without going to trial (thus sparing them what can be a highly stressful experience) may not be in a position to appear on this list.

2. Readers who are contemplating legal action against a current or former employer should not read into the award amounts detailed on eBossWatch any assumption that if they can just get the right lawyer, then a big verdict or settlement awaits them. In actuality, employment claims are hard to win, and many filed cases linger for years before they are finally resolved, and not necessarily with great results for the aggrieved worker.

3. I’m guessing that the differences between the “100 best” employment lawyers as listed by eBossWatch and next, say, 500, are minimal in terms of competency and effectiveness. There are a lot of excellent plaintiffs’ employment lawyers out there.

For help in finding an employment lawyer

Here are resources worth checking out:

Nationally

Those seeking to retain an employment lawyer will find online referral assistance from website of the National Employment Lawyers Association, a bar association of attorneys who specialize in representing workers.

Massachusetts

Massachusetts residents also may “window shop” the attorney directory of NELA’s Massachusetts chapter.

Corporate Counsel: Take workplace bullying legislation seriously

Shannon Green, in a piece for Corporate Counsel (link here), explains how the possible enactment of the anti-bullying Healthy Workplace Bill is having an impact on lawyers representing employers. In essence, these lawyers are seeing more bullying-related claims from employees, and they’re training their clients to develop workplace bullying policies and other measures in anticipation of the Healthy Workplace Bill becoming law.

Here’s a sampling from the article:

No state has yet to pass legislation defining a cause of action, but according to experts, claims of workplace abuse are nonetheless on the rise. Their advice to employers: the time to train your workforce is now.

Legislation is currently pending in New Jersey, and 21 states have proposed laws on workplace bullying since 2003. The Workplace Bullying Institute advocates state passage of the Healthy Workplace Bill . . ., drafted by Suffolk University Law School professor David Yamada.

Practitioners are using the proposed legislation to create workplace training based on what their state laws would look like if passed.

***

In her management-side employment practice, Sharon Parella says she is seeing more and more claims of workplace bullying every month. The Morrison & Foerster partner says the allegations are significant, and they involve claims against all levels of employees.

“We’ve received claims where an employee is laughed at, teased, poked at incessantly by other employees in the group, excluded from social interactions,” she says. She often sees “an employee who is being really sabotaged at work, not being given help with assignments that he or she needs to be successful, or worse, being undermined so that his or her assignments are done poorly.”

What this signifies

In assessing whether conditions are ripe for the law to change, we look for indicators of greater receptivity to that change among key stakeholders.

The fact that management-side employment lawyers are working with their clients in anticipation of the eventual enactment of the Healthy Workplace Bill is an important sign. It’s also encouraging that these attorneys are acknowledging the wrongfulness of bullying behaviors and the harm caused by such mistreatment, even if they don’t necessarily agree with the proposed legislation.

Folks, we’re getting there. Workplace bullying legislation alone won’t end these destructive behaviors, but it will give employees a chance to recover damages and oblige employers to act preventively and responsively toward bullying at work.

August 1982: Next Stop, Greenwich Village

Those even mildly into astrological signs may know that we Cancerians are monstrously prone to nostalgia. I fall squarely into that category, as I can experience soggy remembrance over the sandwich I had for lunch yesterday. This month, I find myself particularly nostalgic over events of 30 years ago, when I moved from Hammond, Indiana to New York City to begin law school at New York University, located in the heart of Greenwich Village.

This was a pretty big deal for me. Although I had benefited greatly from a semester abroad in England during college at Valparaiso University, I was far from worldly and had never been to New York City before applying to NYU. Other than a brief exploratory trip the summer before classes started, I was moving to New York pretty much sight unseen. Within a few days of my arrival, I would start classes in Vanderbilt Hall, the main law school building, on the southwest corner of Washington Square:

Vanderbilt Hall, NYU School of Law

I was both excited and anxious about my move. Though I was delighted to be attending NYU, a highly regarded law school with a strong commitment to supporting students who wanted to become public interest lawyers, I was thoroughly intimidated by my remarkably accomplished classmates. I had spent a year between college and law school living with my parents in Indiana, working as a stock clerk for an area drug store chain and writing articles for a weekly community newspaper. By comparison, when I heard about the fancy internships, fellowships, and jobs that many of my classmates had held, I wondered if I was in way over my head. My apprehensions were stoked by the words of an attorney friend of my parents back in Indiana, who told them that I would be “eaten alive” by the presumably cutthroat, hyper-competitive students at NYU.

Fortunately, he was dead wrong. Accomplished though they were, my happiest surprise was how many friendly, engaging, and (yes) smart people I met at NYU. In fact, I made many friends in law school and hung out with a mutually supportive group who enjoyed each other’s company and knew the importance of a study break (or two or three). Much of that initial bonding occurred over meals in Hayden Hall, the main law school residence hall for first-year students, with a marvelous location on Washington Square:

Hayden Hall dormitory

I began law school with hopes of practicing as a public interest attorney and eventually pursuing a career in politics. I did not anticipate that I would return to academia as a full-time professor. Furthermore, I had very little interest in the workplace issues that have so profoundly shaped my focus and worldview. However, even though my career path diverted somewhat from my original plans, I am grateful for opportunities and support I received at NYU that have helped to open doors to where I am today.

I plan to write more extensively about my experiences in higher education someday, but suffice it to say that NYU was the right place for me. Like most law schools, the standard classroom instruction was overly centered on the study of appellate court decisions. But NYU was and remains a leader in clinical and lawyering skills instruction, and in my judgment its support for public interest legal endeavors has long been second to none.

In addition, while NYU didn’t free us from all the stresses and anxieties of the law school experience, it was, on balance, a pretty neat place to be. In addition to offering a rich array of student activities, it gave us the Village and New York City as our campus. New York of the early-to-mid 80s was a grittier and in some ways more interesting town than its current, shinier, and more expensive incarnation. If you could avoid getting mugged, the cheap diners and Chinese take-out places serving hearty fare, revival movie houses showing double-features of classic films, tickets to Tony Award winning plays for $20, and $4 “nosebleed” seats in Madison Square Garden to watch the Knicks all made Manhattan a surprisingly student-friendly kinda place.

Washington Square Arch

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Note: Thanks to Wikipedia for the “Next Stop, Greenwich Village” poster. (It’s a great movie, by the way.) Photos are not contemporary; I took them during a December 2010 visit to NYC.

Professional schools as incubators for workplace bullying

It has long been my belief that the seeds of workplace bullying are planted in professional schools that prepare people to enter occupations such as law and medicine.

You start with ambitious young people who (1) are used to being heralded as academic stars; (2) do not have a lot of life experience; and (3) tend to be driven, Type A achievers. You then put them in high-pressured educational environments that emphasize technical knowledge and skills and a lot of “left-brain” logical thinking. These degree programs don’t place a lot of emphasis on interpersonal skills and the development of emotional intelligence.

You then unleash them unto the world of work. Uh oh.

Med school

Dr. Pauline Chen, in a New York Times blog piece that already has attracted hundreds of comments (link here), writes about a resident doctor who terrified the medical students with his explosive behavior:

Powerfully built and with the face of a boxer, he cast a bone-chilling shadow wherever he went in the hospital.

At least that is what my medical school classmates and I thought whenever we passed by a certain resident, or doctor-in-training, just a few years older than we were.

With the wisdom of hindsight, I now see that the young man was a brilliant and promising young doctor who took his patients’ conditions to heart but who also possessed a temper so explosive that medical students dreaded working with him. He had called various classmates “stupid” and “useless” and could erupt with little warning in the middle of hospital halls. Like frightened little mice, we endured the treatment as an inevitable part of medical training, fearful that doing otherwise could result in a career-destroying evaluation or grade.

Chen goes on to discuss studies documenting high levels of abuse directed at medical students, as well as efforts that have been undertaken by some medical schools to change their educational environments — often with disappointing results.

Law school

Lest I be accused of tossing bricks from my glass house, let me quickly acknowledge that law schools are no better at educating their students to be socially intelligent practitioners. Even in the face of pressures being exerted by accreditors and leaders of the Bar to do a better job of preparing students for actual practice, law schools overwhelmingly emphasize the study of judicial decisions, statutes, and regulations.

To the extent that lawyering skills become a part of the law school curriculum through simulation courses, clinical programs, and externships, much of the focus remains on advocacy as the dominant interpersonal skill. Client counseling and personal communications are considered “soft” skills, and they rarely get a lot of attention.

Consequently, a lot of lawyers who possess the intelligence to earn a law degree and pass a bar exam come up short on interpersonal skills. It shouldn’t surprise anyone that the legal profession is home to a lot of workplace bullying. Too many lawyers are wired to act aggressively in any interpersonal situation, including dealing with colleagues and clients. Some cross the line and are downright abusive.

Start early

The cues for what constitutes appropriate behavior often are communicated initially in these professional schools. Doctors and lawyers in training may have no idea how to conduct themselves as practitioners, other than being influenced by a lot of unfortunate “role models” on television. If we want to prevent workplace bullying, the training schools for these professions are the first and perhaps best places to start.

***

Hat tip to Dr. Loraleigh Keashly (Wayne State U.) for the New York Times article.

Healthy vs. dysfunctional organizations

With some 800+ articles posted to this blog since late 2008, I’ve been periodically collecting pieces on related topics for your reading pleasure. Here are eight posts from 2011 and 2010 that address various aspects of organizational behavior:

1. What workplace bullying teaches us about the integrity of American employers (2011) — An employer’s response to psychological abuse of its workers says a lot about its core ethics.

2. Confidential settlements in employment cases: Poof, as if nothing happened (2011) — Gag clauses in settlements of employment cases often shield the worst employers from closer scrutiny.

3. How lousy organizations treat institutional history (2011) — Not all organizations treat their past alike.

4. “Strategic planning”: All too often, a time-sucking bridge to nowhere (2011) — In bad organizations, a drawn-out strategic planning process helps to justify and promote more dysfunction.

5. When bad employers retain thuggish employment lawyers (2011) — The worst employers often hire the least-wonderful employment attorneys.

6. How well does your organization respond to employee feedback and criticism? (2011) — The question says it all.

7. Do organizations suppress our empathy? (2010) — On organizational “heart quality.”

8. Is your workplace psychologically and ethically healthy? (2010) — A great list of questions that yield insights into the culture of your workplace.

Can workplaces be joyful?

Another big global law firm — in this case New York-based Dewey & LeBoeuf, with 1,300 lawyers around the world — is facing extinction, a victim of its own ambitions and, perhaps, some of the very avarice that has fueled the economic meltdown. Google the firm’s name and you’ll come up with plenty of articles offering anticipatory obits.

A brief passage in one piece especially caught my eye. Peter Lattman, writing for the New York Times, quoted a Dewey employee about what it’s like to be there right now:

“Law firms aren’t very joyful places even when things are going well,” said the Dewey employee, who spoke on the condition of anonymity. “How would I describe the atmosphere now? The first word that comes to mind is funereal.”

How interesting: Even when the money is rolling in, these law firms “aren’t very joyful places.” To anyone familiar with the world of what prestige-obsessed lawyers and law students love to call “BigLaw,” this isn’t a surprising characterization.

Hard work

Think what you will of lawyers and the legal profession, but practicing law is hard work, and doing it well requires plenty of time, intellect, and attention to detail. Important rights and obligations often are at stake. So I understand if the typical BigLaw office lacks the atmosphere of a Broadway musical or a World Series champion ticker tape parade.

Nevertheless, something is wrong when smart, talented people who have so many occupational choices find themselves coalesced in such joyless places to earn a living. The sad story of Dewey and, quite likely, other corporate law firms on the brink, is that they haven’t learned any of the deeper, quality-of-work-life lessons coming out of what we’ve been through during the past four years.

The NWI Eightfold Path

Dear Reader, I ask your indulgence. Let’s steer away from the joyless world of the typical corporate law firm and imagine what workplaces could be like. Three years ago, I offered what I call the New Workplace Institute’s “Eightfold Path” to a psychologically healthy workplace. Here it is, once again, for your consideration.

Drawing on relational-cultural theory, organizational justice, and therapeutic jurisprudence, I suggest asking these eight questions to determine whether or not a workplace is psychologically healthy, productive, and socially responsible toward its own workers:

  1. Is there a sense of zest, “buzz,” and opportunity in the workplace?
  2. Do employees feel they are valued and treated with respect and dignity?
  3. Is the organizational culture friendly, inclusive, and supportive?
  4. Is organizational decision making fair, transparent, and evenhanded?
  5. Are diversities of all types welcomed and accepted?
  6. Does the organization face tough questions concerning employee relations?
  7. Are allegations of mistreatment of employees handled fairly and honestly, even when the alleged wrongdoers are in positions of power?
  8. Are compensation and reward systems fair and transparent?
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