Impartial Conflict Management
These are non-traditional alternative dispute resolution services to identify and address problems that produce workplace conflict so as to solve them before they evolve into full-blown disputes. Examples include Investigation and Fact-Finding, Facilitation of the Interactive Process Under the ADA, and Crisis Intervention. Parties can also custom-design programs and procedures to manage specific existing disputes or sources of future conflict.
INVESTIGATION AND FACT-FINDING
This is a risk-management strategy for addressing workplace complaints like sexual harassment that require employers to make credibility decisions for which they are unqualified either by experience, training, or disinterest. Rather than getting caught between and becoming adverse to the primary disputants, the employer essentially contracts out the investigation and finding of fact to a qualified, impartial third party saying, in effect, “I won’t decide what to do until I have neutrally-certified facts.” It’s a minimalist process: no one gives up anything, and the employer is contracting out the fact-finding process that must occur to a person with unassailable credentials to do it. The four potential outcomes manage risk of loss due to conflict either by minimizing or neutralizing potential exposure to liability and damages. In the worst case scenario where the investigator finds that the sexual harassment did in fact occur, that answer comes within two or three weeks of the complaint. The employer can then take appropriate steps to settle claims and correct the underlying circumstances as cheaply as possible rather than waiting four years while damages accrue to learn from a jury that it should have believed the other disputant or that its own investigation had been inherently biased. Where the impartial investigator determines either that no sexual harassment occurred or that insufficient evidence exists to support the claim, the employer can take appropriate action to address the underlying circumstances like sensitivity training, separating the primary disputants, and monitoring their future interactions. And the complainant, having had that complaint taken seriously and a fair opportunity to convince an impartial third party with impeccable fact-finding credentials, may (a) be able to get past the issue and continue working without further complaint or, if he or she seeks a lawyer to pursue litigation, (b) be less likely to find one willing to take the case on a contingent fee basis or, if he or she can afford to pay a lawyer, (c) be at a litigating disadvantage because, having had a neutral determination of no cause, the employer’s posture before a jury will effecitvely be “What more could we have done?” Certainly the process will have gone a long way toward neutralizing potential punitive damages and even liability in the first place.
FACILITATION OF THE INTERACTIVE PROCESS UNDER THE ADA
The Americans with Disabilities Act (“ADA”) imposes on employers a duty to provide a reasonable accommodation for the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless the employer can show that the accommodation would impose undue hardship on its business. Meeting that obligation may require the employer to initiate an interactive process with the individual requesting accommodation to identify the precise limitations resulting from the disability and potential reasonable accommodations to address those limitations. At least one Court of Appeals has held that, although there is no per se liability under the ADA if an employer fails to engage in an interactive process, for purposes of summary judgment, “. . . the failure of an employer to engage in an interactive process to determine whether reasonable accommodations are possible is prima facie evidence that the employer may be acting in bad faith.” Initiating the interactive process or facilitating it by offering mediation is a useful strategy that can avoid the consequences of failure to engage. In other words, bringing in a mediator to facilitate the interactive process can have two advantages: (a) it can improve the likelihood of success in developing a reasonable accommodation acceptable to both parties, or (b) it can be conclusive evidence of having engaged in that process in good faith.
Unforeseen crisis situations can arise in workplaces that require immediate intervention by an experienced conflict manager to identify and address the underlying problems with effective solutions. This is a process that employs skills of fact-finding, mediation, and creative problem-solving. Examples in John Sands’ own experience include a widely-publicized racial dispute among the faculty of the University of Florida College of Law, the filing of EEOC charges against a major private university for sexual harassment by a fellow employee, and allegations of racial discrimination against a college football coach and athletic director. In all three situations, the employer avoided liability; and, in the first, the result was a sea change in the University’s culture for managing diversity.
If you are interested in discussing impartial conflict management services or have questions about the process, John Sands can help. John has worked exclusively as an impartial conflict manager since 1973 and has been selected to arbitrate and mediate more than 4,000 cases during this time. He is considered a leader in the profession, has been President of the College of Labor and Employment Lawyers, and has chaired the labor and employment law sections of three professional associations. To learn more, contact John at 973.226.6620 or by email at firstname.lastname@example.org.