Mediating in a Diverse Workplace: Making Peace Happen at Work
Linda Mealey-Lohmann, Esq.
Mealey-Lohmann Mediation & Dispute Resolution
Website: MLMediation.net
Leslie Sinner McEvoy, Esq.
MN CLE Program Attorney
Making Peace Happen at Work
1. Mediating Discrimination Cases
2. Key Theoretical Concepts
3. Roleplays
Mediating Discrimination Cases
Workplace Diversity
• Race
• Nationality
• Religion
• Disability
• Age
• Gender
• Sexual Orientation
• Diverse Cultural Backgrounds
Reasons for Workplace Disputes
• Terminations
• Non-selection/non-promotion
• Workplace harassment
• Work assignments
• Disciplinary actions
• Personality Conflicts*
Federal EEO Laws
Title VII: Race, Color, National Origin, Religion, Gender
Sexual Harassment
Pregnancy Discrimination Act
ADAAA: Disability
ADEA: 40 years or older
EPA: Wage disparity between genders
GINA: Genetic information
*Retaliation & Hostile Work Environment
Right to Sue
Charging Party
Suit Matter of Public Record
EEOC Sues
Conciliation
Unsuccessful
Case Closed
Successful Conciliation
Conciliation
Cause
Charging Party Right to Sue
No Cause
Witnesses Interviewed
On Site Visit
Fact finding Conference
Subpoenas Issued
Records Reviewed
Investigated
Case
Return to Investigation No Settlement
Case Closed
Settlement
Conference
Mediation
For Mediation
Parties Opt
Intake
Mediation vs. Investigation
Outcome within average of
90 Days
Investigations Presently
Average over 6 Months
Litigation may take
4 Years or more
The Mediation Session
●Conducted face-to-face by highly-skilled mediators
●Relaxed and informal
●Focus is on resolution
●Representatives allowed (but not required)
●Normally includes private caucuses at some point
●Usually lasts 3 - 5 hours
●Majority of cases are resolved
at mediation session
• FY 2012: EEOC completed mediation of 11,380 private sector charges and resolved 8,714 of them with benefits exceeding $153,300,000.00 for Charging Parties.
• Average closure age was approximately 101 days.
• Overall settlement rate nationally is 77%.
• Approximately 25% of cases are resolved on primarily non-monetary terms.
• Participants overwhelmingly support the Program and indicate they would participate again if given the opportunity.
• See www.eeoc.gov for more information regarding the EEOC Mediation Program.
Key Theoretical Concepts
Impact of Diversity on:
1. How People Communicate
2. How People Perceive
Applies in the Workplace + In Mediation
2 Key Concepts
Monochronic – Polychronic
Low Context – High Context
Impact of Diversity on Communication
Monochronic Polychronic Communication Styles
• Circular presentation
• Multi-issue focus
• Focus on feelings
May view Other as rigid and cold & feel unheard
Monochronic Communicators Polychronic Communicators
• Linear, sequential (chronological) presentation
• Succinct outline of issues
May view Other as unfocused, disorganized, unprepared
Monochronic Polychronic Speaker Sequence
Monochronic Communicators
• Expect “turn taking” when talking, no interruptions
May view Other as rude and disruptive; can’t express thoughts
Polychronic Communicators
• Prefer Overlapping Talk (“engaged”)
May feel Other is monopolizing the conversation, has unfair advantage
Low Context High Context Communication
The degree of meaning
derived from
actual words
v.
surrounding context
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Low Context High Context Communication
• Verbal communication emphasized
• Direct / to the point
• Explicit, literal meaning
• “Say what you mean & mean what you say”
• Nonverbal communication emphasized
• Indirect
• Implied meaning
• Context provides meaning
Low Context Communicators High Context Communicators
Low Context High Context Communication
Expect Other to say what they mean; doesn’t look for hidden meanings
May miss implied meanings that Other assumes will be understood
Expect Other will draw meaning from full context of conversation May infer meaning that Other does not intend
Low Context Communicators High Context Communicators
Impact of Diversity on Perception
3 Concepts
1.
2.
3.
Selective Perception
Looking at same thing but seeing it differently
Not seeing whole picture
Selective Perception
Selective Perception
• Parties get stuck because they think:
“He’s lying, I’m telling the truth.”
“She’s to blame, I didn’t do anything wrong.”
• Parties get stuck because they think that if they acknowledge someone has a different perception, that means giving up a deeply-held belief/value
Negative Attribution
Negative Attribution
• Parties get stuck because they don’t trust the Other and “distort” Other’s intentions
• Parties read something negative into the Other’s actions, regardless of the actual intent
Reactive Devaluation
Parties in conflict devalue / reject a proposal or idea simply because of who proposed it
• Parties get stuck because no matter what one party
proposes for resolution, the Other Party rejects out of hand
• Parties get stuck because they want the Mediator to make a proposal
Reactive Devaluation
Scenarios – A Quick Quiz!
1. One party keeps talking over the top of the other
2. “Why don’t you stop beating around the bush and just tell it like it is.”
3. One party seems to be reading something negative into everything the other person is saying
4. “I just don’t feel like you are listening to me.”
5. One party seems to dismiss out of hand any suggestion by the Other
6. One party says, “You’re lying, that’s not what happened!”
7. One party is very organized in their thinking and feels the other is very unfocused, unprepared, “all over the place”
Mediation Roleplays
•Get into groups of 3
•Decide who will be Mediator & Parties
•Read Scenario
•Make up any needed facts consistent with scenario
•Mediate for __ minutes
Debrief Roleplays
• What challenges did you experience?
• How did theory apply in practice?
• What mediator interventions worked?
• Parties: What would have been helpful?
• What surprised you about the mediation?
• Questions/ Takeaways
Additional Sources Barriers in Mediation • Korobkin, R. “Psychological Impediments to Mediation Success,” 21
Ohio St. J. on Disp. Resol. 281 (2006) • Stone, D. et al., Difficult Conversations – How to Discuss What
Matters Most (1999) Culture The Minnesota ADR • LeBaron, Michelle, Conflict Across Cultures (2006) • LeBaron, Michelle, “Culture-Based Negotiation Styles,” Beyond
Intractability (2003)
The Minnesota ADR Handbook: A Guide to Mediation, Arbitration, and Other Processes for Advocates and Neutrals, by Gary Weissman, Linda Mealey-Lohmann, Leslie Sinner McEvoy (MN CLE 2011)