Doing mediation to avoid litigation.

A four-step process turns discord into reasoned, problem-solving discussion.

Helen was furious. As supervisor, she was in line, she thought, for promotion at RWS Industries. However, an outsider got the position so she's convinced that it's the "old boy" network at work again. Helen resents

Michael is upset. He senses a shift in Helen's attitude lately but isn't quite sure how to confront her about it. Michael, an RWS Industries manager, has filled the supervisory vacancy with a highly recommended person from another division; he never considered Helen for the job.

Will Helen's performance deteriorate? Probably. Will Michael document her performance deficiencies? Certainly. Will Helen seek outside advice? Is there a lawsuit around the corner? To stem the tide of rising discord, Michael and Helen agreed to participate in an alternative dispute resolution process.

Alternative dispute resolution (ADR), which can take the forms of arbitration, mediation and in-house programs such as the introduction of an ombudsperson and peer review panels, can help avoid three problems:

1. Snowballing legal costs. In a recent Louis Harris poll of major companies, half of the respondents said that legal expenses have risen 30 percent in the past five years.

2. Time lost in court. A clogged judicial system wastes management time and produces victims among winners and losers alike.

3. Unfavorable publicity. No company wants to be labeled as having "a systematic culture of sexual abuse and discrimination," an employee of a Fortune 50 unit told The Wall Street Journal (November 1993). An organization committed to resolving disputes constructively is perceived by its employees and the general public as providing a humane and harmonious environment.

MEDIATION IS THE FOUNDATION

For companies looking to develop an in-house ADR program, mediation is a step in the right direction, because the skills and approaches used in mediation provide a foundation for all ADR methods. Mediation is a voluntary, non-binding process in which disputing parties reach an agreement with the assistance of a neutral third party. The mediation process can change the parties' views of the dispute as well as their attitudes toward each other. The mediation process used in workplace disputes generally goes through four stages:

Stage I: Introducing the process. Parties involved in a mediation session are generally filled with anger, mistrust or resentment, therefore, it is important for the mediator to set a tone of respect and parity. The opening statement is an important "gateway" that encourages fair, free and open exchange. Here's how to establish that setting:

Confirm mediator's neutrality. Parties need to be assured that the mediator will be impartial and will treat them fairly.

Define goals for the mediation. Each participant will be given an opportunity to explain the situation from their perspective and generate their own solutions.

Go over ground rules. Confidentiality is important. Also, get agreement that there will be no interruptions, personal attacks or "put downs" by either party during the discussions.

Stage II: Getting information and defining the issues. As the parties explain the situation from their perspectives, the mediator asks questions that will uncover the facts and the relationship issues. The mediator restates the information to clarify each party's understanding of the events, their underlying interests and needs. The issues are then summarized, affirmed by the parties, and shared interests are defined. For example, with Helen and Michael, their common interests are personal success and the productivity of the unit.

Stage III: Developing understanding and seeking alternatives. The mediator facilitates an open exchange between the parties, so that they can understand the other's experience of the issues. The cooperative atmosphere opens the way to a willingness to develop alternative solutions. The mediator facilitates a brainstorming session between the two parties, so they can plan a course of action to implement solutions.

Stage IV: Reaching agreement. Mediation shifts the parties concern with the past and refocuses on the future. The mediator facilitates the content of the agreement and serves as the agent of reality--what's reasonable and practical. In closing the mediation session, the mediator takes the following approach:

EXHIBIT 1
Discrimination Charges Filed with EEOC
by Fiscal Year (FY)

                 Receipts          Percent of
                                   Change from
                                   Prior Year

FY 1990          62,135                4.6
FY 1991          63,898                2.8
FY 1992          72,302               13.1
FY 1993          87,942               21.6

Source: Data Summary Reports, EEOC.

Facilitates the agreement terms and summarizes. Has parties indicate tasks that need to be completed in agreement, i.e., notification about job positions, training opportunities.

Helps parties specify the terms of the agreement. Irons out as many details as possible to avoid misinterpretation later.

Provides for follow-up where appropriate. Tests the validity of agreement at an agreed upon time.

Through mediation, Helen and Michael reached an agreement that included specific timetables for performance review; a revised career development plan; commitment to increased communication and input regarding policies and procedures.

EXHIBIT 2
Types of EEOC Charges
by Fiscal Year (FY)

Based on            FY 1993      Percent of     FY 1992      '92-'93
                    Receipts     Total          Receipts     Change (|+ or
-~%)

Race                31,695       36.1           29,648       +7.6
Sex                 23,919       27.2           21,517       +11.2
Age                 19,884       22.6           19,271       +3.2
Disability          15,274       17.4           1,077        N/A(*)
National Origin     7,454        8.5            7,179        +3.8
Religion            1,449        1/6            1,386        +4.5
Equal Pay           1,334        1.5            1,288        +3.6

Source: Charge Data Systems National Data Base, EEOC.

* Full year figures not available

RECOMMENDATIONS AND BEST PRACTICES

Human resources and the legal department need to forge an alliance to champion ADR programs. The Society for Professionals in Dispute Resolution (SPIDER) and the American Arbitration Association (AAA) are resources that can provide valuable information when developing a conflict resolution program. To get lists of recommended mediators and trainers, contact these groups' regional and local chapters.

Develop an internal mediation training program. To gain broad-based support for in-house mediation, train employees who represent all functions and levels of personnel to become conflict resolution/mediation specialists.

Southwest Texas Methodist Hospital (STMH) in San Antonio and Brown and Root Inc., a Houston-based construction firm, have made mediation an essential ingredient in their ADR programs. Both of these organizations have from 80 to 150 multi-level employees, line managers, EEO personnel, employee assistance and employee relations personnel trained in mediation skills. Advanced mediation training typically takes from 20 to 50 hours. Employees selected demonstrate an understanding of different races, religions, culture, classes and gender.

TABULAR DATA OMITTED

Ron Tefteller, general counsel of STMH, says the hospital's executive council supports mediation training as an integral part of total quality management to "empower employees at all levels to make independent decisions by equipping them with skills to manage conflict." The mediation process typically handles patient complaints including allegations of malpractice, employment disputes/work-related injury, disputes between hospital employees and physicians and contract disputes with outside vendors.

At Brown and Root Inc., ADR is used to resolve co-worker personality conflicts; issues around promotions, raises, conditions of employment; and racial and sexual discrimination charges go through mediation. To underscore ADR's success, Brown and Root is creating a database to track the cost-effectiveness of its program.

Combine mediation training and diversity initiatives. Awareness training covers race, gender and other diversity issues, but managers need to learn how to handle these potentially explosive issues in a mediation setting. Jim Hester, training and EEO manager of AT&T Cable Network Systems in Norcross, Ga., sees a clear connection between diversity and mediation training.

"We need to set up alternative channels for issues that are boiling under the surface before they become full blown," he says.

Let's face it. When the workplace has become a minefield of sensitivities and potential lawsuits, ADR and mediation skills are our best hope.

Every workplace has its informal leaders, people that colleagues naturally turn to--trouble-shooters, problem solvers, sympathetic leaders. These people are potential mediators, who with training and support, can help resolve conflicts constructively long before they become costly litigation cases. As Abraham Lincoln advised: "Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser--in fees, expenses and waste of time."

Sybil Evans, of N. Y.-based Sybil Evans Associates, has more than 20 years' experience solving conflicts that originate from cultural and ethnic differences. She trains managers, supervisors and support staff in interpersonal negotiations and mediation skills.