Jeff Trueman, IAM Distinguished Fellow
Employment law disputes can be tough to settle. These disputes center not only on employment practices, but also on deeply held personal views of worth, honor, and status. Parties draw “lines in the sand” over their take on the law and swear that they will not move, creating the need to “save face” when they compromise. Of course, mediators who work in this area must work within a maze of applicable laws and regulations but they also must understand interpersonal dynamics and effectively manage and redirect intense emotions. It can be a lot to juggle for mediators.
Many users of mediation believe that successful mediators must possess subject matter expertise in employment law. I don’t disagree per se. From a practical perspective, however, the parties need to feel good enough about the process and the proposed terms in order to agree to a deal. In other words, good mediators may offer their take on the law, but they have to offer more to generate movement.
Saving face is the way in which we stay true, or consistent, to the positions we assume in negotiating conflict resolution. Innately, we know the “social costs of changing one’s mind or appearing inconsistent can be steep.” We want to look good – competent, strong, and confident – to ourselves and to others. That is the face we want to wear.
As adults, we spend most of our time working. We want to develop professional competencies that generate feelings of dignity and pride. Charges of employment-related discrimination are often centered on the loss of dignity and disrespect. Victims of sexual harassment, for example, suffer embarrassment and shame on top of the deprivation of employment opportunities. Allegations of unequal pay, prejudicial termination, or unfair treatment center on “the value and utility of individuals.” Business owners who are accused of violating the civil rights of their employees suffer affronts to their dignity as well. They feel unfairly attacked, anxious over the ultimate outcome, and afraid to lose resources.
“Face” within the workplace can also take on a collective – if not moral and political – manifestation. Although a claimant may seek individual remedies through litigation, society has a larger interest in righting the wrongs within the workplace culture. #Metoo is a clear example of a societal response to workplace disparity. For example, the #metoo movement has criticized traditional conflict resolution (“law and legal enforcement”) because it preserves systemic “structural social hierarchies.” In particular, when resolving claims of sexual harassment in the workplace, confidentiality – a bedrock traditional principle of mediation – often yields to transparency.
As a result of #metoo, confidential settlements are perceived to do more harm than good by isolating victims, shielding predators from accountability, and allowing “harassment to persist.” State and federal laws now prohibit the use of confidentiality provisions in sexual harassment settlement agreements. For example, to the exclusion of other forms of discrimination based on race, age, ethnicity, the Internal Revenue Service no longer allows the deduction of expenses related to the settlement of sexual harassment claims.
Power struggles within an emotional dynamic.
At its core, employment-related disputes center on a power imbalance between the parties. Individual parties assert themselves by filing claims with administrative agencies such as the Equal Employment Opportunity Commission (EEOC). Although the litigation process can provide leverage to claimants, it may not be the best way to adjust power imbalances. Claimants need access to information about the employer and the dispute in order to meet their burden of producing evidence and persuading fact-finders on the merits of their claims. Employers have exclusive control over information, making it difficult for claimants to gain a foothold in court or the EEOC. Many claimants suffer unanticipated feelings of frustration and depression during the litigation process and unfortunately, most of them are not vindicated by a large verdict award in court.
An emotional dynamic
Emotions affect the ways in which we perceive, think, and negotiate. If rationality ruled the mediation process, self-interested bargaining would be easy and rational conversations would generate rational results. Instead, when we feel threatened, we react – often negatively or competitively – triggering a host of mental shortcuts that impede our ability to think clearly and make good decisions. When caught in conflict, we get distracted by anger and fear. We presuppose the intentions of our opponents and attribute their behavior to a flawed disposition instead of a particular situation. We are less likely to “compromise” when we are angry at our opponents, not only for what was done or not done but because of the type of person we perceive our opponents to be.
Employment-related conflicts touch-sensitive nerves that define how we value and respect ourselves and how we perceive others. We feel fear and shame, disrespect, betrayal, anxiety, helplessness, and depression when faced with the potential loss of income, reputation, and self-esteem.
With so much at stake for employees and business owners, it is no wonder that disputes in the workplace trigger intense emotional reactions. Because emotions will determine whether employment disputes are resolved or not, emotional competency is critical for mediators to help parties save face.
 Paul Brest and Linda Hamilton Krieger, Problem Solving, Decision Making and Professional Judgment” A Guide for Lawyers and Policymakers, 556 (2010).
IAM Blog Editor-in-Chief Christine Masters may be contacted at email@example.com.