A mediator writes about workplace bullying and mediation

The question of whether mediation should be applied to workplace bullying situations comes up recurrently in discussions about the potential application of alternative dispute resolution (ADR) mechanisms to this form of abuse.

Dr. Esque Walker, a certified mediator in Texas and an advocate for the anti-bullying Healthy Workplace Bill, addresses this topic in a paper posted to the Workplace Bullying Institute blog:

Mediation is an inappropriate alternative in cases involving any type of abuse or violence such as domestic violence, child abuse, sexual assault, school or workplace bullying.

The victims or targets in these situations are at a disadvantage and are subjected to further abuse.

…The mediation process assumes that all parties involved in the mediation are “sufficiently capable” of negotiating and reaching a mediated agreement with each other as equals in the process. In cases involving workplace bullying or any type of family violence, this is a false assumption….

Esque adds a list of common reasons why mediation in general can fail. Here are the first five on her list:

• Retribution
• The absence of trust
• The imbalance of power between conflicting parties
• Forced or coerced mediations and/or settlements
• Fear of subsequent intimidation and abuse post mediation

These factors would apply to many targets of workplace bullying and underscore why I, too, have generally opposed using mediation in workplace bullying situations.

Restorative justice

Dr. Walker also opposes applying restorative justice (RJ) approaches to workplace bullying. RJ practices have been developed in criminal justice settings, including structured proceedings that attempt to reconcile victim and offender.

As I suggested in a recent blog post, I’m more open to the possibility of applying RJ principles to workplace dispute resolution, which may include bullying situations. However, Esque’s piece has helped me to clarify where I stand on this, nudging me toward my so-called “aha” moment.

First, legal protections, then (perhaps) ADR

Here’s the point: Before we even consider introducing mediation or restorative justice into workplace bullying situations, we need to enact legal protections such as the Healthy Workplace Bill.

Currently in the U.S., applying any ADR mechanism to a workplace bullying scenario often would occur under the assumption that the abusive behavior is legal. This automatically tags the situation as one of conflict rather than one of abuse.

By comparison, crime victims agreeing to participate in restorative justice practices typically have the power of the criminal codes and the criminal justice system behind them, thus significantly changing the presumptions and power dynamics between them and the offenders.

In other words, the power relationships between aggressors and targets in genuine workplace bullying situations will shift significantly once bullying is declared an unlawful employment practice. That will be the time to examine what ADR mechanisms may be appropriate.

Great bosses and leaders: What distinguishes them from the rest?

Let’s face it: Heading up an organization, department, or working group is difficult, challenging work. Doing it well requires a thorough knowledge of the work that must be done, a deep understanding of the organization’s culture, and a megaton of emotional intelligence. On many occasions I’ve written about what makes for great bosses and leaders. I’ve collected a few of the more apt posts here:

Positive qualities of my best bosses (2012) — “They earned respect quietly, expressed appreciation when it was merited, and brought out your best. A word of praise could make my day, because I knew it was sincere and meaningful.”

Leadership as light  (2012) — “…(G)ood leadership is a product of both reflection and action, and is grounded in a moral core.”

Great organizational leaders enable and empower others (2011) — “But when it comes to leading organizations, the ability and willingness to encourage, support, mentor, inspire, and permit others to do quality work is the key to success. These leaders allow people to run with things, responsibly but enthusiastically, and sometimes the results can be extraordinary.”

Want a better company? Listen to your employees! (2010) — “Insecure organizations and leaders quietly implement the suggestions of others and don’t provide proper recognition; it’s called stealing credit.  Confident organizations and leaders, however, eagerly bestow appropriate accolades and compensation and build a culture of genuine participation.”

You want good leaders? (2010) — “Attention organizations: If you want good leaders, then don’t promote the kiss ups, the kick downs, the scheming hoop-jumpers, and the ambitious conformists.  Instead, select folks of genuine vision, courage, character, and good judgment. Don’t take my word for it. . . .”

Working Notes: Latest from the Workplace Bullying Institute

Many readers know that I’ve been working with the Workplace Bullying Institute (and its predecessor, the Campaign Against Workplace Bullying) on a pro bono basis for over a decade. Through the work of its founders, Drs. Gary and Ruth Namie, WBI is the signature public education, research, and advocacy group concerning workplace bullying in North America.

Here’s a sampling of WBI’s latest:

1. Workplace Bullying University 2013 schedule — For professionals in fields such as human resources, labor relations, employment law, and mental health, there is no better training program on understanding, preventing, and responding to workplace bullying than Workplace Bullying University.

During 2013, sessions at WBI’s Bellingham, Washington headquarters are scheduled for February 22-24, May 10-12, August 16-18, and November 15-17.

It’s not easy or passive. Rather, it’s three days of intensive study and discussion that can be applied to one’s professional practice.

2. Seattle-area support groups — Over the years I’ve recommended Jessi Brown, a licensed therapist and WBI’s professional coach, to bullying targets who are seeking assistance. Now Jessi is starting support groups for targets in the Seattle area:

WBI’s Professional Coach & Licensed Psychotherapist, Jessi Eden Brown, will be offering support groups starting in February. This resource is designed for current and former targets of workplace bullying. Participants receive support and ideas from fellow group members, as well as expert advice from Jessi on how to address specific bullying situations and cope with the aftermath of being targeted.

I hope that these groups are a tremendous success, thereby creating possible models for therapists and counselors in other parts of the country.

3. Online survey results on how bullies select targets — WBI has just released results of a 2012 online survey asking bullying targets why they were singled out for mistreatment. Here are the leading reasons (percentages rounded off; up to two reasons may be checked):

  • 21% checked “Bully threatened by target’s technical skills”
  • 18% checked “Bully’s abusive personality”
  • 14% checked “Target not a political game player”
  • 14% checked “Target too popular with others”
  • 10% checked “Target perceived as weak”

4. Gary Namie on Lance Armstrong — In the aftermath of cyclist Lance Armstrong’s confessions to using performance enhancing drugs after years of vehement denial, Gary Namie examines how he savagely bullied and intimidated those who accused him of cheating:

Emma O’Reilly, a cycling team assistant, a soigneur — part masseuse, part go-fer — saw and knew everything. She knew Armstrong and two other team officials planned to backdate a prescription for corticosteroids for a saddle sore to explain a positive steroid test result during the 1999 Tour de France. Armstrong branded O’Reilly a “whore” and a “prostitute liar.”

For O’Reilly, the financial devastation and threats to her livelihood and safety were perpetrated by her employer’s nearly 3 year campaign against her. For her, the bullying was workplace bullying.

Starting a small business? Try SCORE first

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I never imagined that a workshop on how to start a small business would be so inspirational, but that’s how I felt after participating in a day-long program sponsored by the Boston chapter of SCORE, the Service Corps of Retired Executives.

SCORE is a national non-profit organization with chapters across the country, working closely with the federal Small Business Administration (SBA) to provide information and advice to individuals who want to start or build small businesses. SCORE counselors are retired executives who have proven themselves in the private and non-profit sectors, and they lead workshops and provide individual counseling — all on a pro bono basis.

“Getting Started Workshop”

I attended SCORE’s “Getting Started Workshop,” and here’s the agenda for the day:

A workshop for persons who are planning to open a new business or who are looking for assistance in the operation of an exisiting business.

Key Topics Covered, include:
– Entrepreneurship: is it for you
– Is your Business Concept reasonable
– What is a Business Plan and why do one
– How to build a Business Plan
– How to Market your Business
– Do you need an Operational Plan
– Human Resources
– How will you Finance your business
– Building your Financial Plan
– Should you Incorporate
– What Advisors do you need
– What other Resources are available to help you

The Afternoon Sessions are small roundtable discussions lead by SCORE counselors.

It’s a quick but wide-ranging “soup-to-nuts” introduction to creating a small business. The cost? Only $35 for those who pre-registered, $45 at the door. That’s what is known as a bargain.

At the end, participants are invited to schedule individual consultations with SCORE counselors who have some expertise in their general areas of interest. And SCORE’s continued assistance is free-of-charge!

Great discussions

There were about 15 people at the workshop. Many had well-developed business ideas. I don’t want to give away any secrets, but let me say it was inspirational to listen to the breadth and depth of initiatives in the making, covering various services, product development, and entertainment & leisure. By the end of the workshop, folks were exchanging cards and even seeing opportunities to work together.

The upbeat, constructive tone of the workshop was such a contrast to the dire economic news of the day. It brought together people from many different walks of life, personal backgrounds, and educational levels, sporting the kind of natural diversity that makes for a terrific sharing of ideas.

A blessed contradiction

During our small-group session in which people shared their business concepts and ideas, the counselor advised us not to undersell ourselves, suggesting that some businesses lose out because they do not charge enough for the products and services they deliver.

Well, it’s a blessed contradiction for us that SCORE counselors are giving away the kind of advice that one might pay thousands of dollars for in classes and one-to-one business consulting. In the process, they’re giving back to their communities by facilitating new businesses that generate jobs, opportunities, and hope.

Check it out

There are many sources of information and guidance about starting a business. Many cost money, ranging from adult education offerings to full-blown MBA programs. In the case of SCORE, almost everything they offer is free. If you have serious ideas about starting a small business, you owe it to yourself to check them out, as well as the Small Business Administration:

Go here for the national SCORE website.

Go here for the national SBA website.

***

Hat-tip to Brian McCrane, former SCORE counselor, for initially alerting me to these opportunities.

“Why is it taking so long to pass the Healthy Workplace Bill?”

It’s a question I hear from targets of workplace bullying who, very understandably, wonder when we’ll see direct legal protections against this form of abuse. I also hear it on occasion from journalists who may not be fully versed on the challenges of enacting new legislation.

Here’s my short answer: Enacting groundbreaking legislation requires time, patience, and sustained effort.

A fuller explanation

Okay, there’s more to it than that:

1. Workplace bullying legislation remains a very new idea in the U.S. — Those who are closely familiar with legislative advocacy will attest that new ideas often take time to percolate among our lawmakers. Only within the last decade or so has the term “workplace bullying” started to enter the mainstream of American employee relations. When we go into state legislatures across the country advocating for the Healthy Workplace Bill (HWB), we still encounter many elected officials who have never even heard of the term. This means we have a lot of educational work in front of us, and it can take years of building relationships within a legislature to make a successful case.

2. Most bills die in committee — Most legislatures operate in two-year sessions, and during that time, budget matters usually predominate their deliberations. This especially is the case now. Legislation such as the Healthy Workplace Bill must vie for attention with thousands of other proposed bills. Only a fraction of bills introduced in a given session of a legislature are enacted into law. It’s likely that in more active state legislatures, that figure is less than 10 percent. Most proposed legislation stalls in the original committee assigned to review it.

3. Our momentum is attracting powerful opposition — Now that the HWB has gained traction, it’s encountering opposition from employer-supported advocacy groups that, not too long ago, didn’t take it seriously. Generally speaking, corporate interests are not fond of the Healthy Workplace Bill, and they have money and power to oppose it. We saw that in 2010 when the HWB was passed by the New York State Senate, a development that caught a lot of people by surprise. Suddenly we saw the emergence of determined opposition to the HWB.

Staying the course

When I drafted the first version of the Healthy Workplace Bill a decade ago, the idea of U.S. workplace anti-bullying legislation was lightly regarded, to say the least. Since then I have watched this movement grow, gain support, and attract opposition. Indeed, what once was a pipe dream is now being seriously discussed in legislatures, law offices, and boardrooms across the country:

  • Versions of the HWB have been introduced in some 20 state legislatures since 2003, with most of the activity occurring within the past five or six years.
  • In 2010, the state senates of both New York and Illinois passed versions of the HWB. In 2012, the Massachusetts House of Representatives moved the HWB to “third reading,” which means we almost made it to a full floor vote.
  • Even management-side employment lawyers are starting to acknowledge the likelihood that the enactment of legal protections against workplace bullying is a matter of time. More are advising their clients to develop policies and procedures to cover bullying situations in anticipation of that becoming a reality.

In other words, we’re seeing momentum grow. And right now, HWB advocates are now gearing up for the 2013-14 legislative sessions, building on our work to date. We are optimistic about a breakthrough during this time. Stay tuned — and get involved if you’d like to see the HWB become law!

***

To become part of the campaign to enact the Healthy Workplace Bill, go here.

If you’re a fellow Bay Stater, go to the Massachusetts campaign website here.

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.

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