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

lsinnermcevoy@minncle.org

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)