Workplace disputes and alternative dispute resolution

On Thursday I participated in a lively seminar at the Western Institute for Social Research in Berkeley, CA, titled “Conflict vs. Abuse: What Should Be Mediated?” Here’s the seminar description:

This seminar . . . examines the types of differences and disputes that may be appropriate for mediation vs. those that are not. In particular, it raises the question: What are the distinctions between “ordinary” conflict, which may include incivility, disrespectful acts and statements, and expressions of anger, and situations that have become abusive, such as targeted harassment, bullying, and physically threatening or harmful behavior? We will examine these situations as they arise in family situations, workplaces, and communities.

Seminar participants included a terrific group of WISR learners, faculty, and friends, including co-conveners Larry Loebig (mediator, coach, and Internet entrepreneur) and John Bilorusky (co-founder and president of WISR). It was sponsored by WISR’s Mediators Beyond Borders chapter.

The discussion covered not only mediation, but also arbitration, restorative justice, and topics to alternative dispute resolution (ADR).

My take

I shared with the group my ongoing concerns about using mediation to address severe workplace bullying and similar forms of targeted mistreatment at work. As I see it, serious disagreements, various instances of incivility and disrespect, and other forms of conflict at work are ripe for mediation. In some instances, lesser forms of discrimination and sexual harassment may be appropriate candidates as well.

But genuine workplace bullying and severe sexual harassment are forms of abuse, and for many reasons, abuse is not easily “mediated.”

This is especially so when a party to a dispute presents narcissistic, sociopathic, or psychopathic tendencies, typically involving frightened target vs. a smart, smooth, manipulative abuser. In the workplace context, it may involve an employee (“emotional,” “delusional,” “overreacting”) dealing with a psychologically abusive supervisor (“hey, we had a great time playing golf,” “seems like an okay guy”).

Thus, I think we have to be very cautious about how we incorporate mediation and restorative justice approaches into workplace dispute resolution. But moving cautiously does not mean staying put. The current litigation model of resolving workplace disputes is broken, at least outside of the collective bargaining framework. Consequently, ADR merits serious consideration and, when appropriate, careful implementation.

Professor Susan Duncan’s article

Toward that end, law professor Susan Duncan (University of Louisville) has posted a thought provoking article, “Workplace Bullying and the Role Restorative Practices Can Play in Preventing and Addressing the Problem.” Here’s a snippet from her abstract:

This article documents the prevalence of workplace bullying and the human and capital costs of such behavior. The article then briefly describes the concept of restorative practices and analyzes the benefits and opportunities the approach would have in the context of workplace bullying. The final section of the article explores potential roadblocks to implementing restorative practices in the workplace and concludes by offering concrete ideas on future steps companies and policymakers should take to implement restorative practices.

You can read Prof. Duncan’s full abstract and download her article without charge, here.

Part of the toolkit

In sum, mediation and ADR generally should be pieces of our toolkit for resolving workplace conflict and mistreatment. But we always should be aware of their potential to reinforce the original mistreatment and abuse under the guise of seemingly more peaceful, less confrontational methods.

4 responses

  1. This seminar, and many of your comments in the seminar, led to some important insights for me, because I was forced to begin to think about the various different roles that people can play in addressing conflicts. I used to have a fuzzy sense of mediation, arbitration, negotiation and the like. Becoming more aware of the strengths and limitations of different roles seems very important, and in particular, I began to think more carefully about what roles require “value neutrality” and the circumstances in which I might not be at all willing to suspend my strongly held values and sense of “justice” in order to mediate. I also began to ask myself the question, “what can we learn by studying and observing the qualities of people who ‘naturally’ assume conflict resolution roles, quite spontaneously, in everyday life?” For example, in workplaces, on playgrounds where there are “pick up” games of basketball and the like, or even in our families?

  2. Professor Yamada,

    Subjecting an abused target to mediation is just furthering an injustice. Very few people seem willing or able to acknowledge that abuse happens in the workplace and that some of the abusers are intentional and clever.

    Thank you for speaking up.

  3. Hi! I am very grateful to you and the others who are helping us raise awareness on workplace bullying. Recently contacted the local legislator’s office and they had no idea of the Workplace Fairness bill and I calming explained it by reading several paragraphs on what it stands for. They indicated that they were not aware that this bill had yet been introduced to Pennsylvania. Her aide indicated that she supported the Whistleblower’s bill/law..

    I was recently let go from my job because I was looking for another job. One of the reasons is because my boss was bullying me and I knew I had to leave & work for someone who treated me with more respect, kindness and appreciated me. He threatened me constantly. The bullying started over 6 months ago and I didn’t realize at the time this was happening to me–that this was called “bullying”. Some of my friends and family brought it to my attention. I knew that I was miserable and was starting to feel defeated. They encouraged me to work harder and produce more results and this would keep my boss happy. Except it seem to get worse instead of better. One of the key things I noticed is that the happier I was in my own personal life, the worse the bullying got at work. The weird thing is that I hardly ever discussed my personal life at the office. It didn’t make any sense.

    In an attempt to save my job and my employer-employee working relationship, I decided to call my boss’s boss and hold a conversation that they promised would be kept “confidential.” The only problem was–it was not kept confidential and within the week, my boss’s boss came into the office, sat down at my desk and asked me “how’s it going for you now?” I couldn’t say anything because my boss was within hearing distance and this was not the time or place to openly discuss the bullying. Then they went into my boss’s office and talked behind closed doors. For 3 weeks after that–my boss was very nice to me and after that–the bullying started again and this time it was a lot worse! Much to my dismay, it continued to get worse and his threats against me grew worse, my stress got worse and I started forgetting things like little details, because my fear was so great. It was an awful time in my life. The only reason I went to my boss’s boss in the first place is because I needed help and I was asking for it. They basically said that someone in my position, I have no rights whatsoever and it would be a “conflict of interest for them to get involved”. I see…….no rights…..just turn a blind eye and wish it away….it doesn’t work that way….

    Did you ever work for a company and you see people in these cliches? If you were good enough to be in a cliche, then no one could touch you because you had the rest of the “cliche” to defend you. I used to work for a manager who had a meeting about cliches. She wanted all the cliches dismantled because she said they were hurting our bottom line and we weren’t getting our work done. This company, was a major health insurance company. She said that everyone in a cliche had to stop being a cliche.

    I stopped by her office one day and asked if I could speak to her about some thing highly personal and could I shut the door to her office? She said no reason to shut the door. I insisted that I thought it would be a good idea. She grew impatient with me and said “what’s on your mind?” I said “well, Karen, you had a meeting several weeks ago where you discussed how you don’t want our staff members to have any cliches–is that right?” She said yes what does that have to do with anything? I said “well, if you insist on dismantling all the cliche’s it would be a really good idea if you dismantle the cliche you have.” She just looked at me. I mentioned that she has the biggest cliche of all and if she means what she says–she better dismantle her cliche.” Well, as you can imagine — that didn’t go very well because she opened her mouth and then she shut it. After that conversation, the bullying began at that job.

    People are always willing to point the finger the other way, but people forget that there are three fingers pointing back at them. If I say something and I mean it, I better put my money where my mouth is or insert foot! When I hold other people accountable for things they say–instead of them agreeing that they said it–they turn to bullying me. It’s something I’ve seen time and time again. I’m not sure why this happens. I’m just trying to unravel the mysteries of why people bully other people.

    Let’s look at that. If someone promises you something and they don’t fulfill the promise and you remind them of the promise–what do they do? Some good people will admit they did “promise” you something they have no intention of fulfilling or they resort to bullying you. I’ve noticed this trend. I don’t like it and I don’t think anyone loves being lied to. I’ve had so many people promise to do things for me and then turn around and lie and say they never said that. How many people can you count on your hand that has promised you things that you know they will NEVER deliver? How many fingers? How many people? Thjs is the start of what happens when people lie to you in your face and then if they are in a position of power, directly misuse that power to extort their power over you anyway they can get away with.

    These people who have their cliches also are known as the “the good ole’ boys clubs and the good ole’ girls clubs”. Let’s bring this up into the light and look at it for what it’s worth.

    If people knew what really went on behind the scenes–they would have nightmares. Those of us who are being bullied or have been bullied and bully perpetrators got away with it–it just doesn’t seem fair. If insurance companies customers knew how badly their agents treated their employees–there would be immediate cancellations on their policies and the insurance companies would lose money and possibly go out of business.

    If some major grocery food chain or retailer bullied their workers — and the customers found out about it–don’t you think there would be a boycott with people using their pocketbook as their voice to not shop there anymore? What about the companies who take their business overseas and thousand and millions of people lose their jobs? The same kinds of companies who do not think about their employees as being assets instead of liabilities. Sometimes looking at the bottom line does not have to resort to treating their employees like dirt.

    You never hear about this type of thing in the news unless a bunch of people band together and have a class-action lawsuit or form a union or something that helps them gain ground on the atrocities that are currently being waged against workers. What I do want to see happen is that bully bosses who are notorious about bullying their employees and think they can get away with it–no longer get away with it. Bullies just hope that when they treat you really bad–that you’ll just leave as quietly as you came and it gets shoved under the rug where no one will ever know so they can go about their business of bullying the next new recruit.

    This next direct misuse of power starts at the interview now. One of the interviews I had a few weeks ago was with a Hagarstown, MD-based insurance company. At this particular job interview–the manager yelled and asked me to be “honestly” answer questions on a personality test. I did what was asked of me and I truthfully answered the questions. When I was finished–he looked at the responses and grew very angry. He shuffled the papers around and kept looking at them saying “how could you do this? What a terrible disappointment you are! You are only showing that you are moderate in sales.”

    When I mentioned that I may want to take my Series 7 test, he cut me off and said “you won’t ever pass that test, because it’s hard and you aren’t that smart.”

    I had job interview with a General Manager of a small company. When I answered some of his questions–he told me he didn’t believe me. Some of the questions were: Do you own your own car? Is it reliable? Do you have a driver’s license? Do you carry auto insurance? Are you telling me that you wrote your own auto policy? I don’t believe you. Show me some proof. You sold that many auto policies? I don’t believe you. I want some proof. How much money did you make last year? I don’t believe you. I will need to see the past 5 years of tax returns., etc., etc. …… Let me ask you something. Would you want to have a second interview with this company? I didn’t think so either.

    There are a lot of great people out there and they are very nice and truly love and appreciate their employees. You just have to be really careful about picking my way through the employment minefield. The ones that thank you for your time in speaking with them and show genuine heart-felt appreciation are the ones we really want to work for. The others–not-so-much.

    With everything going on in the world today, people are speaking up about all the things they don’t like that is happening to them by bigger players in the game. Because the economy is so bad–people are afraid to speak up about how their employers are treating them. If people stood up and said “stop, you are not treating me well and you need to know that I deserve to be treated with more respect and fairness.”

    Employers who knowingly employ managers who abuse their power by abusing their employees need to know the serious consequences of their actions. One of the reasons the “good ole boys & girls clubs” are getting away with it is because there are no clear-cut laws/rules to stop them. People have feelings and their feelings are worthy and there are such things as immoral and moral acts. Who are the unsung heroes? We are. We are the only ones who can save ourselves. That does not give us license to resort to violence or cutting off their knees. It means that we are no longer willing to accept the status quo. We are no longer willing to accept second-class citizenship in the USA. It’s not a racial thing. It’s a moral thing. There are more people who are being bullied in the workplace than ever before and it’s time to stop it clearly in its tracks. Without serious consequences–laws being put into place to protect law abiding good workers who are being enslaved by bullying–this will unfortunately continue….

    Thank you for all that you’ve done and are doing to help educate and raise awareness of the trials and tribulations of the common worker who may not feel as if they have a voice to speak about it. This is for those who are silently reading these words and want to do something, but are afraid to say the words: “I am being bullied and I feel powerless and I don’t know how to make it stop and I’m not a bad person.” This is for you who are reading these words because I know what it feels like and I’ve been through it too. It’s hard on you because you have to live it, find a way to live through it and then it takes itself out on your family because they want to help you too. You do have a voice and you can be heard even if it’s silently. It takes courage to speak up and be heard.

    I send my deepest most heart-felt compassion to anyone else who is currently being bullied OR has been bullied, and may not have the courage to speak up about it. Those who have been on the receiving end of the abuse–do not despair, there is hope and the light at the end of the tunnel. Every moment when one more person speaks up and is willing to be part of the solution, my hat’s off to you! Remain positive. Help is on the way and today is a better day because we could get together like this and help spread the word. Bless you!

  4. I asked for ADR in my workplace bullying situation. The facilitator said that the way I had been treated was immature and immoral, and that I was owed an appropriate response. Nothing was subsequently done to address the injustice. I eventually resigned citing workplace safety issues…and there was general rejoicing in the land of the immature and immoral. Appropriate response is not required, and in my experience is not a reasonable expectation where a psychologically abusive workplace environment is tolerated. Careful assessment and correct identification of the presenting problem needs to occur prior to determining an appropriate course of action.

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