Vol. I / No. 2
Perspectives on Dispute Resolution—
Focus
NOV 2011
4
Unleashing the Healing Benefits of an Effective Workplace Investigation by Nedy Warren
Generational Gaps in the Workplace 8
Managing Your Narcissistic Boss 10
Holiday Blues: The Key to Managing Workplace Conflict During the Holidays 14
On the Edge
Discover
Commentary 24
What’s in Your Cup? Benefits of Being Intentional in Your Choice of Drink at the Mediation Table 28
Expectations Management at Work
22
The Mediation Community’s Dirty Little Secret
18
Event: CELA’s 24th Annual Employment Law Conference Book: It’s All Your Fault! 12 Tips for Managing People Who Blame Others for Everything 21
Featured Contributors Also in this Issue
Nedy Warren
Jasper Ozbirn
Bill Eddy
Lalita B. Nordquist
Anne Sawyer
ADR Daily 7 Upcoming Events 7 Message from the Editor 3
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Editor-in-Chief / Mikita Weaver
New to our team is Zachary Ulrich, joining ADR Times as Contributing Editor. Zachary is a professional neutral and writer on mediation, psychology, and business practices. He is currently working towards his Juris Doctorate, Masters in Dispute Resolution, and Masters in Clinical Psychology from Pepperdine University. Zachary is a graduate of the two-year General Electric Financial Management Program, and is a graduate of American University in Washington, D.C. where he obtained his BS in Finance and his BA in both Economics and International Studies. We look forward to the unique insight that Zachary will bring to ADR Times! ------------------------------------------------------------
Last month marked the debut issue of our monthly newsletter ADR Times: Perspectives on Dispute Resolution, with great anticipation to raving reviews! The feedback on the newsletter so far has been amazing and we are excited to continue with this month’s issue focusing on workplace mediation. As a token of our gratitude and appreciation, we are giving away two Kindle Fire tablets! Subscribe to the ADR Times Mailing List at www.adrtimes.com/ mailing-list to ENTER TO WIN!! Winners will be announced at the end of November, just in time for the holidays! For more information, please contact: Ms. Mikita Weaver, Editor-in-Chief (800) 616.1202 / editor@adrtimes.com www.ADRTimes.com z
Focus
Unleashing the Healing Benefits of An Effective Workplace Investigation by Nedy Warren, Esq. SPHR The average working American devotes more time to work than to family, leisure, or even sleep. According to the Bureau of Labor Statistics, time spent working beats time spent sleeping by an entire hour. Given the amount of time and energy we spend at work—plus the fact that conflict is a frequent and natural byproduct of human interaction—it is no surprise that the workplace is a petri dish for all types of disputes and complaints.
In almost any company or organization, the goal of the Administrator, Human Resources Representative, or Risk Manager is often to eliminate these conflicts by quickly determining “what happened” so that the appropriate action can be taken. In fact, employers must conduct effective and thorough investigations whenever they are put on notice of possible misconduct or risk exposure to a claim for failure to investigate.
An investigation not only satisfies legal requirements and produces the facts of “what happened” but also, if conducted properly, can reduce the chances that the conflict will escalate into a legal claim. The key is to communicate to the complainant that he or she matters and is being heard. An investigation is not just about the facts. It is about the people involved and their ability to share their story with someone who hears them. For what is a story except the meaning and interpretation that a person places on what actually happened? An investigator may learn the “fact” that Employee Jane did not receive a performance bonus this year. But what prompted the conflict is Jane’s “story” about what that means to her. An investigation is just as good a place as any to allow Jane to tell her story. Often, an employee may not feel heard until they have their day in court—by then, the cost of the conflict has risen dramatically. Don’t get me wrong. I am not advocating that workplace investigations take the place of a company’s employee assistance program or provide therapeutic sessions for the witnesses. What I am proposing is that a company can utilize an investigation as part of its overall program to enforce policy, reduce risk, and cultivate a culture of empowerment.
Show Employees That They Matter The first step—demonstrating to an employee that he or she matters when they’ve made a complaint—is the job of the company or organization. Four ways that a company can show the employee he or she matters is by: (1) taking prompt action; (2) having a neutral party conduct the investigation; (3) ensuring confidentiality; and (4) communicating the results of the investigation.
ised, an employer can and should explicitly explain to the complainant that the substance of the investigation will be shared only with those who have a need to know, i.e., the accused, witnesses and the administrative decision maker. Fourth, employers should communicate to the complainant and the accused the results of the investigation and avoid leaving those parties in the dark. In any void, new stories and conflicts will undoubtedly appear.
Let Employees Know They Are Heard The second step—demonstrating to an employee that he or she is heard—is the job of the investigator. I tell anyone I am interviewing that my job is “to collect facts,” not to judge or decide who is right or wrong. That is only partially true. While I am collecting facts, I am also listening to the story behind those facts. There is an old adage that says “there is healing in the telling of the tale.” By using active listening skills, an investigator can create an opportunity to make a human connection. After showing up, an investigator’s most important task is to listen. That begins by creating a safe space for the speaker where he or she feels comfortable rather than intimidated. The investigator should spend a few minutes learning about the employee’s education or work history—or even making small talk about the weather—rather than immediately diving into the allegations at hand. It may sound trivial but putting interviewees at ease by being interested in the “small stuff” makes it easier to demonstrate later that what they say about the “big stuff” is important to you. Next, the investigator should limit the amount of talking he or she does and focus on brief comments (“yes” or “uh-huh”) or nonverbal reactions (nod of the head, a lean forward) to the employee’s statements. The goal is simply to elicit as much of the story as possible. Using parroting or paraphras-
First, a company’s prompt response to a complaint demonstrates that the company cares about what its employees have to say and is serious about eliminating misconduct or violations of its A company can utilize an investigation as part of its overall policies. Ignoring an employee’s complaint is program to enforce policy, reduce risk, and cultivate a culture of the loudest way a company can communicate empowerment. that the employee does not matter. Second, having someone investigate who is not vested in the facts or outcome of the investigation signals that the company wants a fair process, regardless of ing is extremely helpful in showing the employee that you where the chips may fall. Employees will quickly opine that are listening and understand what he or she is saying. Nothe employer is concerned only about itself if the investiga- ticing body language and nonverbal cues will assist the intor is someone who already knows about or was involved vestigator in following the story. For example, if Employee in the facts or who is in the employee’s chain of command. Jane says, “No, I never heard John make any sexual jokes at Third, although complete confidentiality cannot be prom- work,” at the same time that she crosses her arms for the first
“
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November 2011 | 5
time in the interview, it may be a signal that there is more to explore there.
To successfully parrot back someone’s statements, or notice subtle nonverbal cues, the investigator must be alert and not distracted by his or her own
view. The employee should leave the interview with the feeling that they left nothing unsaid, at least as it relates to their complaint. The employee should leave the interview with the feeling that they just spoke to someone who actually cared. By actively listening and
Transform your workplace investigative process from one where “ complaints are handled to one where employees are heard. ” thoughts, judgments or even copious note taking (I recommend investing in a good digital recorder). These methods convey interest and understanding while still allowing the investigator to remain neutral. Particularly with the complainant, there should be no time limit on the inter-
Nedy Warren
conveying a genuine sense of concern, the investigator has the power to create those feelings for the employee. David Augsburger, author of Caring Enough to Confront, said, “being heard is so close to being loved that for the average person, they are almost indistinguishable.”
A company or organization can greatly reduce the risk of employment-related claims and lawsuits either by training internal staff to conduct investigations with this intent and skill set, or by hiring an outside investigator with these skills. More importantly, it can begin to transform its investigative process from one where “complaints are handled” to one where “employees are heard.” Only in that kind of environment can you have empowerment. Only in that kind of environment is there the possibility that someone will tell their story and maybe even leave it behind. z
Nedy Warren, Esq. SPHR is Director of the EMPOWER Project for the Agency for Dispute Resolution and a labor and employment law attorney with extensive workplace consulting experience. Having litigated employment disputes for over a decade, she discovered how much more satisfying it was to keep her clients out of court and shifted her practice from litigation to prevention. She is trained in alternative dispute resolution through the Los Angeles County Bar Association and a licensed California Private Investigator. She is trained in The Reid Technique of Interviewing and Interrogation and has conducted more than a hundred investigations into workplace complaints of harassment, discrimination, retaliation and fraud. Website: www.agencydr.com Read more articles by Nedy Warren at: www.adrtimes.com/articles/author/nedywarren
6 | ADR Times Perspectives
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Generational Gaps in the Workplace by Jasper Ozbirn
That I am writing this article tends to prove the thesis of this article— different generations have different goals and priorities regarding career, life, and workplace. In the spirit of full disclosure, I border Generation X and Y, and identify with characteristics of both groups. In line with Generation X-ers, I believe there is more to life than one’s job or career, and I make time to write articles because it is fulfilling in a way that my career as a litigation attorney is not. This article is intended to provide the briefest of primers on how generational differences can play out in the workplace to create conflict.
Veterans (1922-1945)
Baby Boomers (1946-1964)
Generation X (1965-1980)
Values
Separate work and personal life
Live to work workaholics
Leadership Style Rules
Direct and authoritative
Collegial
Balance of work and life Work to live - place premium on family/ friends
As the law
Respect for
Motivational Phrases Rewarded By
“We appreciate your loyalty”
“Your input is valuable”
Communication Style
Formal - Memo
Direct and in person often dislike email
Satisfaction in a job well Money and title done
Immediate - not afraid of emails
Generation Y (1981-2000)
Fast, informal and frequent - “how r u” is acceptable
Everyone is equal
Collaborative
Skeptical of - can do it better myself
Believe made to be bent - need flexibility
Freedom to do as seen best
Receiving personal attention and direction
“Your way is good or better than any other”
“We appreciate your hard work”
The table draws heavily from Dogan Gursoy et al., Generational Difference: An Examination of Work Values and Generational Gaps in the Hospitality Workforce, 27 INT’L J. HOSP. MNGMT. 448 (2008) and Greg Hammill, Mixing and Managing Four Generations of Employees, FDU MAG. VOL. 12 (Winter/Spring 2005).
8 | ADR Times Perspectives
Four Generations to Consider There are presently four generations with members in the work force. The table sets forth some generational characteristics regarding the workplace. As apparent from the table, each generation differs from every other generation in many respects. These differences have the potential to create conflict. For example, a Veteran boss may be driven crazy by the constant barrage of emails he receives from a Gen X-er or Y-er, while the sender thinks nothing of copying the Veteran supervisor on every mundane email. If not approached delicately, the X-er or Y-er will simply write off the Veteran’s complaints as “outdated,” further distancing these individuals. On the other hand, a more volatile situation may arise where an X-er or Y-er becomes the manager of a Boomer or Veteran. This is especially likely to occur now because of Generation Y’s stronger grasp of technology. Not only will the Boomer or Veteran feel inferior to someone who could be their grandchild, but the Veteran or Boomer is also likely to see the youngster-manager as less capable because of generational differences. The Boomer that receives an email from the youngster-manager stating: “pls send ur avlblty 4 a mtg this pm asap” will be unimpressed, insulted, and may not even understand the “encoded” message.
Fastest Bridge to Generational Gaps = Understanding and Flexibility In the interest of brevity, perhaps the single-most valuable consideration to bridge the generation gap, regardless of which generations it falls between, is to “be flexible.” This is especially applicable to the younger generations in approaching their supervisors. Understand that while the bosses’ way is not the only way, it is their way and their perception of you and your work product will be directly influenced by your approach to them. If you fight tooth and nail on generational issues, and insist on sending colloquial emails to your Veteran boss, the whole relationship may be poisoned, which will effect their impression of your work product, raises or praise, and their willingness to be flexible with you. Notably, these are all desirable to X-ers and Y-ers.
Focus
These considerations apply to supervisors as well. Considering each employee’s generation (in addition to background and personality) will enable you to figure out what motivates them to do their best work, which is good for them and good for the company. z
Jasper L. Ozbirn received a LL.M. in Dispute Resolution with an Emphasis in Mediation from the Straus Institute, Pepperdine University School of Law. He is presently an associate attorney with Citron & Citron in Santa Monica, California. Jasper Ozbirn
Read more articles by Jasper Ozbirn at: www.adrtimes.com/articles/author/jasperozbirn
November 2011 | 9
“How do I deal with my narcissistic boss?”
is the most common complaint I get about high conflict people
in the workplace. They are everywhere, and seem to be increasing these days – from the lowest supervisor to the self-destructive owner of the business.
They generally seek positions over others in order to help themselves feel better about themselves – because unconsciously they feel helpless and inferior. They need people below them to reassure them that they are “superior.” But it’s never enough. Narcissistic bosses want (need?) constant reminders that they are the “best,” the “brightest,” the “richest,” or anything that feels one-up to those around them. If you have such a boss, you will naturally feel miserable. It’s the human response to being treated as an inferior. The trick is to learn how to “manage” this boss, until you can permanently get away from him or her. by Bill Eddy, LCSW, Esq.
1. Understand their predictable patterns of behavior.
Narcissists are self-absorbed. They lack empathy for others, are arrogant, feel entitled, and manipulate relationships to serve their own interests. At the conscious level they truly believe they are superior to those around them, but at an unconscious level they are very insecure. They demand attention and admiration from those around them. If you directly confront a narcissistic boss, he or she will do everything possible to “put you down,” to recover from the “narcissistic injury” you have caused them by temporarily destroying their fantasy of superiority.
normal social limits or responsibilities. Therefore, you are not going to change their personality or get them to “look in the mirror” at their own behavior. Instead, you need to manage them in small ways that help you cope on a daily basis.
3. Understand their moods & behavior
will swing back and forth. Narcissists can be very charming at times – usually to “win” people as friends or allies. Narcissists can be very vindictive at other times – usually as a result of a “narcissistic injury” when someone has threatened their superior 2. Understand that their behavior is deeply rooted. self-image, either privately or publically. Both of these Personality traits are mostly formed in early childhood moods are temporary, so it’s not hopeless when he or she for all of us. Narcissistic personalities are often devel- is being vindictive, and it is not over when he or she is beoped: A) because of biological tendencies present before ing charming again. You can often influence these moods. birth; B) as a defense mechanism against child abuse or You just have to be careful. I know you will resent havan insecure “attachment” with one or more parent figures; ing to watch your own behavior so much, but it’s not that or C) from being overly-empowered as a child without hard and it will make your life so much easier.
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4. Try to connect through
Empathy, Attention and/or Respect (EAR). I know this is the opposite of what you feel like doing. But this really works. Look interested when your narcissistic boss talks to you. “Butter him/her up” with an occasional compliment, asking a question (such as asking for advice), sharing an interesting tidbit of information, or thanks for some positive contribution. But be careful not to lie about a compliment, or put down your own skills in the conversation. Just be matter-of-fact and let the focus be on him or her for a few minutes. Don’t get defensive, because their comments are not about you. Resisting your own defensiveness can take great personal strength, but you can do it – especially if you remind yourself “It’s Not About Me” before you have a talk. It’s about the narcissistic boss’ insecurities and lack of effective social skills.
5. Analyze your realistic options.
It helps to write down what has happened, to help you get perspective and take it less personally. Then write down what your options are: get a different job at a different company; get a different position at the same company; talk to someone else about strategies for dealing with this boss (human resources, ombudsperson, his or her supervisor, etc.); study your companies’ policy on bullying; etc. Knowing you have options will make you much stronger in the face of someone else’s ridiculous behavior. Just avoid direct confrontation, which is tempting when you feel stronger. You may need a positive evaluation or recommendation some day from this narcissistic boss. Instead, focus on something else, such as counting the days until you will no longer have to work for this boss.
November 2011 | 11
6. Respond quickly to misinformation.
Narcissistic bosses often “kiss up” to their superiors in the workplace hierarchy, to make themselves look good. This often includes putting someone else down, such as spreading belittling remarks about you or others. Without directly challenging the narcissist, you should provide the correct information as soon as possible, so that others in your company do not come to believe that these criticisms about you are true. If an email contains misinformation, respond in an email and just say something like: “In case anyone was unclear about …, here are some details which you might find helpful…” Then focus on factual information, without commenting on the distortions that may have preceded it. Your matter-of-fact tone and factual information will show that you are the more credible person. If you slip into counter-attacks you will hurt your own credibility in the long run.
7. Carefully set limits on really bad behavior.
Narcissistic bosses are constantly violating other people’s boundaries, constantly insulting, and constantly demanding of attention. You are not going to change these behavior patterns, but you may be able to “contain” or stop specific behaviors for a while. First, think of the behavior that you want. Then think about whether this is a limit you could set personally (like saying: “I have to go now, in order to finish the project you asked me to do yesterday”) or need help in setting limits (like from the boss’ supervisor, a union representative, or a mediator). A mediator can add structure to the process and can help soothe the boss’ ego as needed.
Bill Eddy
A company or union representative can add consequences, or the threat of consequences. You have to carefully decide which approach (or both) would be most successful.
Then, calmly but firmly say what you want or need to the boss. Focus on the future solution, rather than the past problems, as much as possible. Try to provide a good “external reason” that this will be good for the boss that’s not a personal attack – otherwise he or she will try to get revenge later on. For example, say how this change could reflect well on him somehow, or will help your department comply with some policy, etc. At all times, try to be empathetic and respectful. You can say you regret having to make this request, but you think it will help you both be more effective in the future. Lastly, let the narcissistic boss know that you have respect from others and that you have the support of other important people in your organization. You can just drop little hints about this, or let him know more formally. Narcissists always want to look good in front of others, so they are less likely to mess with you if they know that you are not alone. And you’re not alone! This is a huge problem in today’s workplace and the pattern is very predictable. That’s why we’re putting out an article about it. z For an expanded discussion on dealing with narcissists in any setting, see Bill’s book: “It’s All YOUR Fault!” 12 Tips for Managing People Who Blame Others for Everything, available at www.HighConflictInstitute.com in the Books & Products section.
Bill Eddy, President of High Conflict Institute provides training and consultations regarding High Conflict People (HCPs) to individuals and professionals dealing with legal, workplace, educational, and healthcare disputes. Bill Eddy is the President of the High Conflict Institute and the author of “It’s All Your Fault!” He is an attorney, mediator, and therapist. Bill has presented seminars to attorneys, judges, mediators, ombudspersons, human resource professionals, employee assistance professionals, managers, and administrators in 25 states, several provinces in Canada, France, and Australia. For more information about High Conflict Institute, our seminars and consultations, or Bill Eddy and his books go to: www.HighConflictInstitute.com or call 619-221-9108. Read more articles by Bill Eddy at: www.adrtimes.com/articles/author/billeddy
SKILLED PEACEMAKERS & CREATIVE PROBLEM SOLVERS Toll Free (800) 616.1202 www.AgencyDR.com
SM
14 | ADR Times Perspectives
Focus
Holiday Blues
The Key to Managing Workplace Conflict during the Holidays by Lalita B. Nordquist, SPHR, MA, MDR
The holiday season is meant to be a season of thanks, of giving, of love and of friendship. Picture yourself with a mug of your favorite tea or hot chocolate, sitting in the cozy corner of your couch in front of a fireplace surrounded by family, friends, good food, and laughter. At work, this means decorated cubicles, holiday parties, gifts exchanges, and more holiday cookies, scented coffees, candy, pies and cakes than we can handle. We expect it to be quieter at work with people in and out on vacation…and those who are at the office are more jovial, less…serious. That’s what it should be…right?
In reality, the holidays often add acute stress to life in general. There is the pressure of coordinating events, balancing the needs of differing family members, worrying about spending money in this tough economy, concern about gaining weight, etc., etc., etc. This pressure builds and is carried into the workplace where there is already stress from year end closings, month end sales, carrying the workload of absent team members, and the basic business struggle to survive. This is the reality of the holidays.
In a holiday environment like this, workplace disputes are bound to arise…perhaps more often than during the rest of the year. Often times, we are so mired in our own world that we do not take time to effectively process the conflict situation we are in. As a result, we are left to our instincts of “fight or flight”…passively avoid or aggressively confront.
This emotional reaction is normal, but it’s not necessarily effective. Furthermore, the damage we can do to our professional reputation by being reactive and by NOT being thoughtful in conflict will last beyond the holiday season and will follow us into the New Year. It is in this sense that we give up control of our professional lives and reputations by allowing other people’s situations and emotions to control them for us. We let other people dictate our behavior and reactions, hence allowing them to design our life for us…we live by default. The overarching question then is…How do I design my own life? How do I take control of the immediate reactions and emotions that come with conflict?
Acknowledging and anticipating the inevitability of conflict, especially during the holiday season, is a great starting place for any professional looking to manage conflict effectively. The mental image of the holidays we create for ourselves, which is so often idyllic, also allows for us to be caught off guard when the holidays don’t go as expected. This element of surprise can, if we let it, predispose us to being reactive when conflict arises.
This acknowledgement and anticipation of conflict is the first step to ensuring we are prepared to manage it. Also key is recognizing the aspect of personal choice. In this economy, we are so focused on what we have and don’t have with regards to “things,” but what we often neglect is the recognition of the one thing we all have…choice. As Viktor Frankl, neurologist and holocaust survivor succinctly put it, “When we can no longer change a situation, we are challenged to change ourselves.” We always have a choice… in how we will react and in what our attitudes will be.
Stephen Covey, author of the 7 Habits of Highly Effective People, explains choice in Habit # 1: Be Proactive. Part of being proactive is in understanding that between a stimulus and our reaction is a space…and in that space lies choice. We do not need to be products of reaction…products of emotion.
Lalita B. Nordquist
That is ineffective in conflict management. Instead, we can proactively make our choice on how to handle a conflict in advance of the conflict occurring. Knowing that the holiday season is a stressful one, we can mentally or even physically, by writing it down, decide what those healthy choices will be. These are phrases like… • I choose to pause or step away when someone angers me. (This lengthens the time between stimulus and reaction… to allow us time to process our feelings and ensure our reaction is not an emotional one.) • I choose to communicate with the end result in mind. (If you are heading into a conflict and want a resolution, you are choosing to proactively decide…What is the best approach? How do I partner versus fight?)
• I choose to think win-win when in a debate. (Thinking win-win first requires that you understand the other person’s perspective and needs. This is especially useful in the work environment where the relationship is a long term one.) • I choose not to let other people’s stress and emotions impact me. (This puts YOU in control of YOU.)
• I choose to create a sense of calm in my life and take time for myself during the holidays. (This will give you time to renew your spirit so that you are better prepared to manage your emotions.) • I choose to address an issue at the beginning before it festers and worsens. (This acknowledges our place in resolving a dispute.)
• I choose to assume the other person has the “best intent.” (This acknowledges that likely, the other person is not a bad person doing bad things with bad intent. Likely, they are reacting to their environment and are in an acute state of stress.)
Lalita Nordquist is a Vice President of Human Resources at an Inc. 5000 Fastest Growing Company (Inc. 5000 designation years: 2007 through 2011). She and her team of 17 serve a client base of around 1500 employees with business operations across 7 states. Ms. Nordquist is also a Master’s graduate of the Straus Institute for Dispute Resolution at Pepperdine University’s School of Law as well as a Master’s graduate from Pepperdine University’s Graduate School of Education and Psychology. She lives in a suburb of Los Angeles with her husband and two young children. Read these and other articles by Lalita Nordquist at: www.adrtimes.com/articles/author/lalitanordquist
Making these “healthy choices” in advance of situations that would require immediate reaction helps to hard code our…core values. These values then become apparent in our actions, especially in times of stress, and thus aid in our professional demeanor and reputation. Making healthy choices helps us to ensure we are living by the principles we believe in. Covey states that these principles are our guiding sense of right behavior. Finally, it helps us to be the creative force in our own professional lives…designing it to be what we want it to be by controlling our output. These 7 Habit principles are useful in all aspects of life and are especially useful in conflict resolution. So as you head
Focus
In a holiday environment workplace disputes are bound to arise ... perhaps more often than during the rest of the year.
into the holiday season, make a list of those you are buying gifts for…of those things and people you are thankful for… and of the healthy choices you will make when faced with a conflict. Creating a foundation of trust and respect in the workplace is paramount to establishing rapport with those you work with; however, the real work comes in maintaining that foundation by managing workplace disputes in a way that nurtures these long-term employment relationships. According to Covey, that’s the key to being an effective person…and it’s also the key to being a highly successful business professional. z
SCOTT VAN SOYE, Esq., LL.M. Mediator | Resolution Expert
“
I’m passionate about mediation because it promotes everything I valued as a lawyer more effectively than litigation: swift, cost effective, confidential, and creative restoration of peace and justice. “ 800.616.1202 x715 scott.vansoye@agencydr.com www.scottvansoye.agencydr.com
”
DISCOVER
EVENT REVIEW
CELA’s 24th Annual Employment Law Conference by Anne Sawyer
The California Employment Lawyers Association (CELA) held its 24th Annual Employment Law Conference on October 27-29, 2011 in Monterey, California at the Hyatt Regency Monterey. CELA is celebrating its 25th year Anniversary and its 24th Annual Conference. There were over 250 attendees at this year’s conference. They have grown from a very small group of attorneys to over 1000 members. CELA is a volunteer driven organization that consists of 13 committees which are extremely active in education, listserv, amicus briefs, diversity outreach, legislation, technology, and wage & hour. This organization is built on volunteering, collaboration, and networking. Through these committees, the members are actively involved in diversity outreach, scholarships, and fellowships.
Mandatory Arbitration is a hot topic right given the Supreme Court decision which held that consumers do not have the right to sue a company they believe has wronged them. Instead, consumer must arbitrate disputes pursuant to an existing mandatory arbitration clause. Many consumer or plaintiff attorneys will tell you this decision leans heavily in favor of businesses and employers. CELA hopes that the Arbitration Fairness Act Bill will remedy the present unbalance. The Arbitration Fairness Act — S. 987 — was introduced in May by Sens. Al Franken (D-Minn.) and Richard Blumenthal (D-Conn.), and by Rep. Hank Johnson (D-Ga.) in the House. It would amend the Federal Arbitration Act to invalidate all arbitration clauses in consumer or employment contracts.
The Senate Judiciary Committee recently convened to discuss this legislation. The overall consensus is that there is nothing wrong with the arbitration process itself. The problem is when the consumer has no input in choosing arbitration or trial in the first place. Additionally, most corporations utilize the same arbitration provider, and in many cases, the same arbitrator, over and over again. This means Much of the focus of the conference was “The Year the employee’s individual claim is being decided by in Review” including the current status of recent legislation and decisions on employment related matters someone who makes hundreds, sometimes thousands of dollars, on a yearly basis from this employer. this past year. Cliff Palefsky, who is one of the leading Clearly, the repeat player bias works to the employee’s employment and civil rights attorneys in the country, disadvantage. The Arbitration Fairness Act would covered the Mandatory Arbitration update. Mariko fix this problem by restoring consumer rights in the Yoshihara and Steven Pingel, CELA’s Legislative process and hopefully providing a level playing field. Committee Chairs, covered the legislative update.
18 | ADR Times Perspectives
Monterey, CA
Cliff Palefsky, who was involved in the initial draft of the Arbitration Fairness Act, does believe that the bill faces some challenges given the Republican controlled house. He believes the most effective resolution is to amend the Fair Arbitration Act back to its original intent: allowing parties with equal bargaining power in big business transaction to utilize arbitration while exempting parties who coerced into arbitration due to inequality of power. Employees have a right to a fair process which includes the right to choose alternative dispute resolution or a jury trial. Mr. Palefsky also added “Regardless, this issue is not going away no matter how many decisions are handed down. This is a significant consumer and civil rights issue, so it is a matter of time before it will have to be addressed.”
Eric Epstein is a CELA attorney who has practiced employment law for over 35 years and also serves as a Mediator and Arbitrator for The Agency For Dispute Resolution. He states that as an arbitrator, he has never had any concern or reliance on repeat business and feels most arbitrators are fair and reasonable. Mr. Epstein goes on “The big issue is the elimination of class actions suits because the employee as an individual Plaintiff on a class action claim are bound by the employment contract therefor have no ability to initiate a class action suit. How to get around the class action waiver is a much larger concern.” In addition, Mr. Epstein adds there are “many benefits to the arbitration process. The key is finding a way to be more transparent, while maintaining confidentiality, in the process.”
November 2011 | 19
Several other bills coordinated by the Legislative Committee were vetoed this year because of a new democratic Governor and a conservative house; however, CELA still was responsible for many bills being signed into law which included several pro-worker bills. They also saved the Fair Employment and Housing Commission from elimination. In addition, they were successful in killing many bills that were deemed detrimental to workers. Another bill referenced several times was the Bereavement Leave (AB325) which was also vetoed by Governor Brown. This bill would have provided
job protection for a three day unpaid leave upon the death of a spouse, child, parent, sibling, grandparent, grandchild, domestic partner or the child of a domestic partner. This bill was vetoed simply because the Governor felt it was not a problem and that the measure would have provided more of a right to sue than what is contained in related statutes. Some of the other keynote speakers included head of the DFEH, Phyllis Cheng, and Assemblyman, Bill Monning (from the 27th District). CELA is an amazing organization that hosts this conference to provide its members with several forums
for discussion, collaboration, networking, and community involvement. As Toni Jaramilla notes, “CELA conferences are not only a community building experience but also a huge inspiration in continuing to do the work necessary whether it be advocating for our clients, lobbying in San Francisco, or collaborating as a team with each other. CELA to me is full of integrity, generosity and collaboration.” In addition to focusing on committee updates and mentoring, the conference also celebrated the victories of its member over the course of the last year. z
On a personal note, this was a down to earth, passionate, friendly and inspiring group of people. The diverse group of people made the conference very informative and fun for this first time attendee. I hope to have the opportunity to join them again in the future. Congratulations to CELA in celebrating its 25th Year! Toni Jaramilla, as the new Chair of CELA, is very excited for the year ahead. She is honored to take this chair and is looking forward to being part of such a great organization. As a young lawyer, she initially became involved with CELA when she had an interesting sexual harassment case on appeal. CELA members, Anne Richardson and Joe Posner, assisted her with the amicus brief which was an incredible experience—“Ms. Richardson was a stranger to me but still helped me in so many ways and in the end we received an outstanding outcome on the case.”
20 | ADR Times Perspectives
Anne Sawyer
Anne Sawyer is a Senior Case Manager with Agency for Dispute Resolution. Having worked for a range of industries from Fortune 500 companies to solo practitioners, Anne has over twenty years of paralegal and administrative experience in the legal field. Prior to her position with Agency for Dispute Resolution, she was the Law Firm Administrator and Senior Paralegal for Sawyer & Sawyer in Cypress, California. She also previously worked at Paul Hastings Janofsky Walker and Hilton Hotels Corporation as a senior paralegal and project manager. Anne has an affinity for details and intensive research while also maintaining focus on the “big picture.” She understands the strict requirements of the legal progress but also honors the integrity of the human experience. Anne lives in Huntington Beach with her family, and she is an avid traveler, music enthusiast, and volunteer at Precious Life Shelter. Website—
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November 2011 | 21
On the Edge
The Mediation Community’s Dirty Little Secret by Vivian Scott
We are a great group of people, us mediators. We understand how emotions and values play into conflict, we recognize the power in a solution that fits both parties’ needs, and we approach the world with a quiet confidence that any disagreement can be resolved. I love that about us. Too bad we don’t always apply those skills when it comes to the divide in our own community, though—namely, the ongoing attorney-mediator versus the non-attorney-mediator discussion. Unlike doctors without borders, it seems our community has borders…or should I say boundaries? I know I’m not the first person to bring up this subject and I’m certainly not the first person to think that the topic is talked about way too much behind closed doors rather than out in the open, but I’m going to bring it up again because I’d really like us to work on a resolution. The divide between the attorney-mediator and the nonattorney-mediator disappoints me.
22 | ADR Times Perspectives
I rarely think of the qualifier (attorney- or non-) unless I’m with a group of individuals who insist on introducing themselves one way or the other. Otherwise, I simply introduce myself by using my name. I’ve noticed that on all sides of the room there can be a tendency to look down on an individual who doesn’t share your qualifier. For instance, if someone introduces herself as a therapist-mediator, it is not surprising to hear her somewhat negative take on those without the same qualifier. I have had attorneys tell me that in order to be a good mediator, one must have a strong understanding of the law and you cannot get that without a J.D. I have heard individuals from the psychology and therapy worlds say that in order to be a good mediator, one must have a strong understanding of human nature and that you cannot get that without the type of education and experience they have gained in their practices. Moreover, I have
witnessed plenty of mediators without a law or counseling background look down on those who hold such credentials because “those people” have a slightly twisted view of “pure” mediation. Oh my. At a recent ADR conference, a breakout session was offered to discuss the state of mediation in our region. The topic of certification, licensing, and qualifying for mediator status came up and by the reaction you would have thought the speakers were personally attacking our mamas! The response was heated and, quite frankly, got a little out of hand. Old guard folks were irritated that anyone would suggest their lack of formal training (which didn’t exist when they started a gazillion years ago) made them any less a mediator than their counterparts who had finished three years of law school but only completed a 40-hour basic training and wanted to call themselves mediators. Those in mediation practices got hot and bothered when others
likened their thousands of hours of mediating cases to a nice thing to do for the community, much like peer panels at the local high school. And it went downhill from there.
So, what is the answer? Should we as a community insist on another level of certification that anyone is free to obtain so that we can simply call each other mediator? Alternatively, can we agree that we are entitled to our own opinions about what makes a mediator a mediator and ignore the opinions of those with whom we disagree? Maybe we could use some of the skills we like to tell everyone we possess and work toward solving the dirty little secret in a way that would satisfy everyone’s needs. Starting with common ground might be a good place (note my first paragraph).
non-attorney mediator. I am also a non-astronaut mediator, a non-physician mediator, and a non-silent mediator. z
Vivian Scott is a Professional Certified Mediator with a private practice in Snohomish, WA. She is the author of “Conflict Resolution at Work For Dummies” and a contributing author to “Thriving in the Workplace For Dummies”. Her expertise covers workplace, business to business, family, and community disputes. Ms. Scott received the Silver Screen Award from the International Film and Video Festival for outstanding creativity for her role as developer and Executive Producer of the “America at Work” video series which aired on the USA Network.
Have an article, story, comment, or topic suggestion you would like to share with ADR Times? Email editor@adrtimes.com or contribute online at: www.adrtimes.com/contribute
www.vivianscottmediation.com
I really do believe we have more in common than not. I also believe I am bringing up a touchy subject that will not be put to bed easily, but I would like us to try. Oh, and in case you are wondering, I am a
November 2011 | 23
Commentary
Expectations Management At Work by Zachary Ulrich
Ever get mad at someone because they did something you didn’t expect? Of course you have, we all have. They’re not something we directly think about every day, but expectations are a key component of what drives many peoples’ behavior – including our own – all the time. When we sit down at a nice restaurant, we may expect that the waiter or waitress will be agreeable and helpful, that our food will be served in a reasonable amount of time, and that it will be reasonably welltasting. If those expectations are not met, what follows may be a reaction ranging from disappointment to confusion to even, in extreme cases, anger or a feeling of being personally slighted. In many ways, unmet expectations are one of the most fundamental causes of interpersonal conflict, because our expectations speak directly to how we view and value the world. When someone does not meet our expectations, it can take great maturity and wisdom to not emotionally respond and instigate conflict. Our ability to balance our and others’ expectations is directly related to our ability
24 | ADR Times Perspectives
to prevent conflicts before they even occur, and to understand and resolve them when they do. Especially at work.
There are many different kinds of workplace “environments”. Many people work in offices with separate cubicles, desks, etc. Some are always on the go – flying around the country and world interacting with clients and partners. Some are in shops. Others in eateries. Some work outside. But amongst all of the varied ways by which people work, there are usually a few consistent workplace dynamics, and with those dynamics expectations that come with them. For instance, most people have a “boss,” most people have “co-workers,” and some people have team members they lead. Each relationship comes with different sets of expectations regarding how individuals act relative to one another. There are many forms of each working relationship – many different ways that people interpret their role and thus define their roles with others.
Expectations With Our Leaders
Regardless of the character of the relationship, many people spend more time each day worrying about the demands of their boss than of their family, and that means that the expectations of our leaders can have drastic effects on not only our professional efficacy, but also our well-being. If I had to give one tip on how to effectively manage expectations with superiors, it is this: Foster an Expectation of Honesty.
And that’s all well-and-good, but at the end of the day there is usually at least a system of interconnected expectations of how we interact along organizational pyramids, and it’s important for all of us (on every level of the pyramid) to be able to successfully manage the expectations of ourselves and others based on our place in that hierarchy. Some call this “managing up,” or “managing down”—there have been many books on this topic. But with the vast amount of material out there on expectations management all of the insight can become muddled, and hard to apply in our everyday working lives. And that’s why I’m going to keep it simple. From both research into the subject and from professional experience, I have developed for myself three straightforward “precepts,” which I use every day to balance expectations in my working relationships. I remember one main point for each of the three levels I outlined: those leading me, those working parallel with me, and those on teams I am leading:
Some people espouse the “low-balling” strategy with their bosses – they say that a good way to “get ahead” is to pretend that tasks are more “difficult” than they are, so that when they deliver realistic work-product their supervisors are continually impressed. Put simply, while it may work in the short-term, over the long-term that strategy can be disastrous. Honesty is the basis of most healthy relationships: Without honesty, there is no chance to develop mutual respect and rapport. Now, I can’t account for personality idiosyncrasies in supervisors, but what I can confidently say is that the vast majority of people on this planet prefer being told the truth to being told untruths or only shades of truth. And even if you are able to low-ball your boss in the shortterm, if the supervisor is anyone worth their salt, they’ll probably eventually figure it out. Not being completely honest can lead to what I call the progressive “Three D’s”: Distrust » Disrespect » Discord. That “discord” means unpleasant conflict for the employee, not the supervisor. On the other hand, if you are completely honest about what your supervisor can expect regarding your assignments, hopefully he or she will come to trust and know that they can rely on you for honest advice
November 2011 | 25
–which is one of the most valuable assets any effective manager can have. Honesty can make you positively stand out as well, especially because all too often subordinates prefer to “pass the buck” when possible, rather than simply be forthright.
It’s important to establish expectations of reciprocity with our peers, because we never do truly know when we may need to call-in that favor. Find peers with whom you have positive rapport and offer to fill-in for them when you are able; find common functions that you both know how to accomplish and develop an understanding that at times one may need to fill-in for the other to Expectations With complete those tasks. This goes both ways. Make sure that you are available to help them when they need Our Peers help. All too many people seem to feel irresponsible Ahhhh yes, our work peers. Our colleagues. In many or “weak” if they have to occasionally rely on others to ways, the people we work with are some of the closest help them accomplish their goals. But the reality is that ties we form. Sure this doesn’t mean that our work peers sometimes we all need a helping hand – and sometimes necessarily become personal friends (although some of they’ll need it from us. By sharing the load, this helps course do); nevertheless, our working peer relationships everyone find balance, which in turn reduces tension, can be some of the most important determinants of our builds team rapport, strengthens working relationships, personal and professional efficacy and satisfaction. So, and leads to less conflict in the work place. what can we really “expect” from our peers beyond their willingness to work with us and get along? Is there any sort of mutually beneficial understanding we Expectations With might reach with them? I think there is. If I had to give one piece of advice that I think too few people heed Those We Lead regarding their working peers, it’s this: For many people their role as a leader is one of the most difficult in their lives. When we’re someone’s “boss,” Develop an Expectation of Reciprocity. we inherently hold some powers of decision-making “We’re all in this together” is a colloquialism so over- over them, and in many cases have much control over used it’s become a bit corny – but it applies to most whether or not they advance in their careers. That can of our lives more than we may realize. Everyone has be intimidating to those we lead: It can be truly scary different workloads – and indeed, workloads that vary to have not only one’s income, but a large portion of in intensity depending upon what projects we’re on and one’s sense of professional self-esteem in the hands of what time of year it is. Because sometimes life gets in a single human being – someone who, oftentimes, was the way – with all of the demands of family and living, a complete stranger before the working relationship we can never truly predict what kind of limitations began at all. And while there will always be a need for we might face in trying to complete our work. It’s an element of distance and discipline between ourselves important to realize that no one can do everything, and those whom we lead, that’s no reason to not balance all the time. (Yes, that includes you!) All too often I those realities against a genuine desire to foster respect encounter professionals who take great pride in their and openness within the ranks. Managing expectations ability to be “self-sustaining” and to work completely with those we lead isn’t just about motivating the team independent of others. And to be sure, these qualities to work hard, it’s about establishing effective patterns are important attributes of many successful workers in of communication so as to not only avoid conflict, their fields, but being largely independent doesn’t mean but also to help everyone work more effectively and that there aren’t times when we could use a helping happily. From both my experience as a supervisor and hand. There will inevitably be times when we could from my research, I’d have to say that the one piece of really use one of our colleagues to step-in for a missed advice regarding our expectations as managers is this: meeting, conference call, or assignment.
26 | ADR Times Perspectives
Encourage Expectations of Respect, Bi-directionally. While it’s of course important to maintain genuinely respectful relationships in all areas of our lives, it is particularly important to do so with those on teams we lead. The primary motivator for many employees to do top-notch work lies not in the salary they bring home (although this is important), but in how much they enjoy and respect their work and their co-workers … especially their leaders. Respect entails many things, and goes well beyond simply being “nice” or adopting a positive affect when interacting with our team – because people can smell out when concern isn’t real. We can’t fake it, and often subordinates take offense and feel distanced from us when we try. They realize that they’ll never get a feel for who we “really” are as leaders.
Respect instead comes from a genuine sense of concern about our team members’ well-being – a genuine desire for them to be successful, and for them to flourish while contributing to team goals. It’s about being comfortable enough with ourselves as leaders to not feel “threatened” by subordinate’s successes, and about being genuinely open and caring with those under us while also being able to maintain the “distance” necessary to be an effect delegator. And this all works both ways – it’s okay for subordinates to expect respect from you. In fact it’s crucial to developing valuable working partnerships with them. My experience is that some managers don’t get that. If those under us are too intimidated to address us frankly when there are conflicts or problems, it’s often because we’ve trained them to anticipate not
Zachary Ulrich
being respected when they previously tried. Maybe we were “too busy” or, pretended to care but really didn’t. Maybe we smiled and nodded and then told them to simply try to “work it out” without doing what they really needed from us – listen empathically. All that said, if we’re able to truly integrate a bidirectional respect into our relationships with those we lead, it’s amazing just how much energy team members will be willing to put in to help the team succeed. When we respect and genuinely appreciate those we lead, they more often than not return the favor – and remember, every ounce of respect and appreciation we project to our teams feels like a pound of it to them (and the same goes for dysfunctional dynamics we create as well). Encourage bidirectional respect, foster engagement and openness with your teams, and not only will incidents of conflicts decrease, but those conflicts that do arise will be much more readily handled, and everyone on our teams will be more satisfied, motivated employees. z
Comment
Zachary Ulrich is a Contributing Editor at ADR Times and professional neutral and writer on mediation, psychology, and business practices. He is currently working towards his Juris Doctorate, Masters in Dispute Resolution, and Masters in Clinical Psychology from Pepperdine University. Zachary is a graduate of the two-year General Electric Financial Management Program, where he held several financial analysis positions and studied business operations and strategies from executives within the organization. He is a graduate of American University in Washington, D.C., where he obtained his BS in Finance and his BA in both Economics and International Studies. Read more articles by Zachary Ulrich at: www.adrtimes.com/articles/author/zacharyulrich
Commentary
What’s in Your Cup?
by Mikita Weaver
When sitting around the mediation table, sometimes it pays to be intentional about your choice of drink. It may be a source of comfort for the parties. It may bring calm. It may bring peace between the parties if only for a moment and possibly create a space for resolution. There is something soothing about sitting down and having a cup of your favorite beverage. Nothing soothes the soul like a cup of tea when you are feeling stressed out; a cup of coffee as you peruse the morning news; a glass of wine to compliment a home-cooked meal; your favorite ale while watching your favorite sports team on TV; or a glass of cider or hot-chocolate to warm you up on a cold winter’s day. In day to day life, it is easy to become overwhelmed with our hectic schedules. It becomes necessary to sit down, relax, and enjoy a moment of peace with your favorite drink. In that silence, there is calm. Beverages can have more than just this personal benefit. In India, my travel companions and I
met a young man named Nicki. From the outset, our situations were very different. As American citizens, my traveling companions and I had the opportunity to attend college and travel the world which provided us with untold opportunities to see and experience so many different things. Our new friend Nicki on the other hand had grown up in the outskirts of Delhi and had taken a job inside the city so that he could care for his mother and younger brother by sending money home.
Although we all recognized that our lives were so very different, we sat outside at a local vendor and shared a drink. The drink was almond milk sweetened with honey. The vendor poured the milk back and forth from one pan to another to make
the milk frothy (like a low tech cappuccino machine) before serving us our frothy beverage. As the North Indian evening became night, we were warmed by the hot, sweet milk drink. We engaged Nicki in thoughtful conversation about his country and he shared with us the details of his life in India. Sitting around the table, we shared stories and learned and laughed together. It is not really surprising that as we meet new people and engage with those around us, drinks will play a small but subtle role. After all, we are humans and we require food and water to survive. A business meeting is usually followed by lunch or at least accompanied
Charles Maurice de Talleyrand said, “Espresso is to Italy, what champagne is to France.” by coffee. An office kitchen and coffee machine is usually a place for lively conversation or gossip. A restaurant or bar hosts gatherings of friends. And the kitchen table is a place for families to their day with one another.
Mikita Weaver
However, as we engage with others from different cultures in a business or social context, it is important to be more intentional about our choice of drink. For example, it is completely acceptable in many European cultures to drink many alcoholic beverages at a business meeting. In contrast, anything stronger than tea is not acceptable with people from a middleeastern culture. Likewise, while it may be acceptable to serve wine and beer at a state-school reception, that simply is not an option when at a more conservative Christian university event. In mediation, a mediator should be accurately aware of the needs of the parties. A day-long mediation will usually involve some type of catered food. Dietary needs and cultural needs should be considered when making these plans. Charles Maurice de Talleyrand said, “Espresso is to Italy, what champagne is to France.” When sitting around the mediation table, sometimes it pays to be intentional about your choice of drink. It may be a source of comfort for the parties. It may bring calm. It may bring peace between the parties if only for a moment and possibly create a space for resolution. z
Mikita Weaver is the Editor-in-Chief of ADR Times, a premier online dispute resolution community. As an associate at Northrup Schlueter LLC, she focuses predominantly on litigation and arbitration in the field of construction insurance defense. She received her Juris Doctorate at Pepperdine University School of Law and received a Masters in Dispute Resolution from the Straus Institute. Mikita has been published on the Pepperdine Dispute Resolution Law Journal and worked at the Centre for Effective Dispute Resolution in London. As an avid traveler, she continues to explore various dispute resolution issues and how they vary from region to region. She graduated magna cum laude from Berea College with a philosophy degree and her favorite things include yoga, cooking, photography, and singing with the Legal Voices of Los Angeles and Lawyer’s Philharmonic. Meet Mikita— www.adrtimes.com/editor-in-chief
30 | ADR Times Perspectives
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