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This note is in response to Mediating Employee Concerns.

Thursday, June 25, 2009
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Dear Editor: 

I am a conflict coach, mediator and arbitrator trained by Peace Maker ministries (hispeace.org) and The Lutheran Church--Missouri Synod as a member of the LC--MS conflict resolution panel for the LC--MS and the Michigan District.  

I have observed the same phenomena within the Christian community. Conflict is usually hidden behind the smoke screen of denial and apathy. While this is being done, it creates other, more toxic problems for both the pastor(s), lay leaders and the congregation as a whole.  

Bicker groups form around one side or another. Secret meetings are held to bolster each side's position. Covert operations are conducted to "find" those who are on "our side". Passive-aggressive behavior becomes the main focus of leadership. In extreme cases, the congregation is divided, the Churches mission is forgotten. What is most important is to win at all costs.  

The worst form of this dual intimidation is fostered by the congregation's (and even the denomination's) history. The longer hurt (whether real or imagined) is left without attempts to deal with the emotional impact of the conflict situation, the more difficult it becomes to successfully resolve the problem.  

A congregation I served has unresolved conflict that began in 1954. For a variety of reasons, the conflict was never addressed. In fact, the conflict became so entrenched in the congregation's DNA, that it became a secret. When I uncovered the "secret," and shared the source of the congregation's malaise, my service to the congregation was over. The pain was medicated with adamant denial, and the toxicity of the congregation grew worse.  

As a result of this unresolved conflict, and additional hurts from pastors over the next decades, the congregation is in the process of dying. It no longer has life and vitality. Their mission has become self preservation at all costs.  

Though they have the illusion (delusion?) they want to grow, to do so they do not want to be challenged to change and grow.  

Unresolved conflict compromises not only the secular business world, but also the Christian (and other spiritual) systems.  

Sadly, the refusal to acknowledge conflict in the present and the past creates a spiritual "cancer" which spreads its toxic cells through out the community of believers.  

From my perspective as a very reluctant retiree from parish ministry, Keisha-Ann G. Gray is very correct in her analysis of the corporate world. The more quickly conflict is uncovered and addressed, the better it is for the entire corporate body. To modify a commercial for an anti-depressant, "Who does conflict hurt? Everybody."   

Dale M Kleimola

Milan, Mich.

* * * * * * * * * *

The article on Mediating Employee Concerns, although well written and very topical has factual errors and ethical lapses in judgment.  

Specifically, the statement, "Not all charges, however, are deemed eligible for mediation -- only charges the commission determines have merit will past muster; those without will not be deemed eligible. " is not accurate.

Merit can only be found after investigation by an EEOC Investigator. EEOC mediators have no facts to base a merit analysis upon.

As correctly explained by the author the mediation process occurs before commencement of an investigation. What I believe the author intended to convey is that only cases that appear to fall under EEOC's jurisdiction can be mediated.

For example an allegation of discrimination that occurred over 300 days before filing (in most states) would not fall under EEOC's jurisdiction and therefore are immediately dismissed with no mediation and no investigation. The difference between merit and jurisdiction is huge. In fact, cases that "appear" to have very strong merit (designated as A1 cases) are not eligible for mediation.  

Ethically, the statement, "On the other hand, even if a case does not settle in mediation, the process can provide an employer with valuable information about the employee's complaint as mediation often results in 'free and unbridled discovery'." is highly contrary to EEOC policy and practice.

Using EEOC mediation for "free and unbridled discovery" borders on a lack of good faith, especially if the charging party is not represented, as is often the case. Gaining new insight case may be incidental to a mediation, but to actively seek "unbridled" discovery, raises real ethical issues relating to good faith.

Using mediation for discovery also runs contrary to many ethical standards set by professional bar and mediation associations.  

I am a former EEOC Deputy District Director for six states and had responsibility for managing four EEOC Mediation Units, as well as all EEOC Investigators in my District. I also teach advanced mediation skills, and the Ethics of mediation.  

Stanley Braverman, Esq.

Braverman Associates, LLC

Keisha-Ann Responds:

Mr. Braverman's letter provides our readers with helpful insight from the valuable perspective of someone who had an intimate connection with the EEOC mediation program.

First, with respect to the question of when the EEOC considers a charge ineligible for mediation, it is certainly true that there are a variety of reasons why the EEOC may deem a case ineligible for mediation, including lack of jurisdiction.

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The EEOC's Web site page, entitled Questions and Answers About Mediation, states in response to the question "Are all charges eligible for mediation?": "Charges that the EEOC has determined to be without merit are not eligible for mediation."

Mr. Braverman provides helpful clarification that the EEOC may be using the term "merit" as shorthand for "jurisdiction."

Turning to Mr. Braverman's ethical concerns regarding employers using mediation as a means of obtaining discovery, he points out significant issues that warrant discussion. Of course, the primary goal of mediation should always be to resolve a claim in a mutually agreeable fashion, and it goes without saying that employers should enter into EEOC mediation in good faith.

However, the fact that employers will more often than not gain valuable information regarding an employee's claims during mediation is first and foremost important because such information can help the parties understand one another and lead to the speedy resolution of a claim.

Moreover, as noted in my column, regardless of whether or not the case settles, employers can benefit from such information in that knowing it provides the employer with a unique opportunity to take steps to remedy underlying workplace problems that gave rise to the complaint in the first place.

Finally, it is a fact that during the course of the mediation, employers may also gain insight that will help them effectively respond to the claimant's charge should the matter not settle.

Mr. Braverman makes a valuable point regarding the ethical issue of entering into an EEOC mediation when such tactical information gathering is the employer's only objective for entering into mediation.

However, nowhere in my column do I suggest that any party should "use EEOC mediation for 'free and unbridled discovery " or that any party should "actively seek 'unbridled' discovery' through the use of the EEOC's mediation program or "use mediation for discovery," as implied by Mr. Braverman's letter.

The point of my article was to stress that even if mediation does not result in settlement, there are secondary benefits that can come from the process -- such as additional discovery and insight into the underlying causes of the claim. However, to use the EEOC's mediation program solely for discovery purposes (without entering into it with a good-faith hope for settlement) is clearly contrary to the spirit of the mediation process.

That said, because (to quote Mr. Braverman) "gaining insight into the case may be incidental to mediation," and because such insight may increase the chances of an amicable resolution to the controversy, I highly recommend that employers give the EEOC mediation process serious thought before rejecting the option outright because participation in the process often has far-reaching positive effects on employers and the overall workplace environment.

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