It’s time to come together
I’m not going to try to add to the chorus of voices frightened about what they see happening in our country. I worry every day not just that we’re divided – but that we don’t even know how to even speak with those with whom we disagree.
Instead, I’m posting this beautiful and uplifting video. Maybe it takes a beer company to show us the way? I’ll take it!
I KNOW WHAT YOU DID AT WORK (AND SO DOES EVERYONE ELSE)
As if there weren’t enough good reasons not to go to court on employment claims, the Internet has given us another.
Increasingly, electronic court filings are being widely circulated, either by plaintiffs’ attorneys or by courthouse information services. And the more sensational the allegations, the likelier the case is to go viral.
The trend is most notable where someone (usually but not always a woman) alleges that she’s been subjected to sexual misconduct and/or discrimination. No surprise there. There’s a far smaller audience for cases about, say, subordinated debentures.
The Internet is nothing if not a vehicle for creating mass outrage: Her co-workers were disgusting! The company laughed off her complaints! She had to leave her job and her whole life is falling apart! Something must be done!
Although going public can sometimes be a good tactic to create sympathy and perhaps push the employer to settle quickly and generously, it also may backfire.
In some cases, the employer has damaging information of its own to release. Years ago, while investigating a woman’s claims of inappropriate conduct by her boss, I learned that she often initiated sexual talk at work, even sharing graphic nude photographs of herself. In the digital age, her behavior could have become common knowledge well beyond her circle of co-workers.
Being publicly embarrassed also may cause the employer to harden its stance. Where management may have been prepared to offer the employee a reasonable settlement, it now may feel compelled to disprove the allegations and restore its reputation.
There are downsides for the plaintiff as well. As with any lawsuit, she (or he) may be viewed as a risky hire. She also may be labeled as a victim or perhaps even a slut, a reputation that can carry over into her personal life. As a law professor told the New York Times, “Things people never bargained on getting out will get out.”
The fear of adverse publicity also keeps many legitimate victims of discrimination and harassment from filing suit, lest their lives be laid open to the world. This may be the most unfortunate consequence of all.
Training employees and managers about sexual harassment, I used to suggest they ask themselves whether they’d be ok with their spouses reading about their behavior in the local newspaper. Now that question is whether they would want their actions to be shared with friends, neighbors, employers, and strangers all around the world.
INTERACTING WITH OTHERS – A NOVEL IDEA
My daughter hosted a sleepover for her 12th birthday last weekend. Things were a little different than the slumber parties I remember going to at that age.
Each time I checked on them, at least three or four guests had their heads down, looking at their phones. Two girls kept leaving the room; they seemed to be texting with someone all evening long. And when I came downstairs at an insane hour to ask them to lower their voices, one girl was at the kitchen table staring at a computer. A computer, and not one of ours – two girls had bought computers along with their sleeping bags.
So I found it interesting to read about the newest craze in Taiwan – gaming clubs. Not for playing electronic games or shooting big game, but for good old fashioned board games. At least100 such clubs have popped up on the island. Taiwanese schools are using games as teaching methods. Parents encourage board games as a way of limiting their kids’ time with electronic devices. Workers appreciate time away from a computer screen.
But I think one young man hit on the real reason the clubs have become so popular: “You can interact directly with your friends. Everyone is at leisure and chatting . . . If you play on your cellphone, not necessarily so many people can participate.” Or as the owner of one game parlor says, “Those things [computers] are just machines, and machines aren’t your friends.”
Though we think of ourselves as ultra-connected, our nonstop involvement with electronics leaves us craving genuine in-person human interaction, complete with “bursts of laughter and animated debate.” I expect to see gaming clubs or something similar on these shores before long.
THE UNIQUENESS OF EMPLOYMENT MEDIATION
Words of wisdom from a highly-experienced mediator:
The [employees] believe they have been mistreated by their employers, and the employers almost always deny the factual allegations. Consequently, employment mediations tend to be emotionally charged. At the same time, the cases usually involve a complex body of statutory and case law. This requires a mediator who can empathize with the employee and employer, make them feel comfortable and engender trust. At the same time, however, the mediator must understand the applicable law and be able to discuss how it applies to the facts of the case.
http://www.mediate.com/articles/GrubmanJbl20140905.cfm
“HOW ARE WE SCREWING YOU UP?”
Reading today’s obituary for John Shields, a former CEO of Trader Joe’s, I was struck by one passage:
Shields said he spent days in stores asking employees, “What are we doing at the office to screw you up?”
“And, boy, I filled up 20 notepads,” he said.
No one knows a job like the people who are in it. Why then is it nearly unheard-of for managers – much less a CEO – to take the time to ask employees what’s going well and what could be improved?
The benefits of these conversations are enormous: By knowing what’s wrong, the stores could operate more efficiently – good for the bottom line. Employees felt valued, that someone in the home office cared enough to ask how they were doing, and that any complaints they had (apparently, quite a few!) were being heard. And because the workers in the stores constantly interacted with customers, they were able to provide first-hand insight into what the Trader Joe’s consumer wanted.
Did Mr. Shields act on everything in those twenty notebooks? I seriously doubt it. But I have no doubt at all that listening to employees was a significant reason that the number of Trader Joe’s stores grew more than sixfold during his tenure.
NEWS: THE HARWELL INSTITUTE
I’m pleased to announce that I’ve become affiliated (non-exclusively) with the Harwell Institute, which has been established to provide the legal community with mediation and arbitration services at an extremely affordable cost.
With mediation no longer available through Los Angeles Superior Court, attorneys and their clients are in an unpalatable situation. Since cases may not get to trial for five years, early resolution is more important than ever. But the traditional ADR provider organizations are very expensive, and spending more than a modest amount for mediation often isn’t feasible.
Harwell mediators are all former LASC panel members, experienced in a wide variety of subject areas. Attorneys can select their mediator or if preferred, have one randomly assigned. In addition to subject matter expertise, the key feature of the program is affordability: the fee schedule is based on Orange County’s court-connected mediation program.
I am available to mediate at Harwell Institute’s mid-Wilshire offices, my personal office in the South Bay, or other location mutually acceptable to the parties.
CHEATING AT WORK? BLAME YOUR BODY CLOCK
A fascinating new study suggests that when we’re tired, we’re more likely to cut corners. Someone who’s an early riser will do more poorly – and even cheat – later in the day. The opposite holds for those who prefer late hours.
All of which adds fodder to the notion that the 9-5 workday is on its way out.
WHY DOES TV HATE MEDIATORS? PART 2
In a previous post I discussed why TV just can’t seem to accurately portray the mediation process. I mentioned the new reality program “Untying the Knot,” which follows an attorney as she works with couples in the throes of divorce. Although the show refers to her as “mediator,” the pilot showed her determining how assets would be split – precisely what does not happen in mediation.
I checked back in for episode 3. The producers have abandoned all pretense that the couple might have a say in the outcome. Gone were words like “recommend.” This time, the “mediator” made her ruling and the couple had to live with it. She was judge, jury and executioner. Her word ruled.
Please. Call this process Arbitration Lite or Judge Vicki or Piggly Wiggly. Just don’t call it mediation.
This show does a serious disservice to those involved in or contemplating divorce, or who might benefit from mediation in other contexts. Although they may have heard of mediation, they’re likely not well-informed about what it is or how it differs from going to court. Watching this show only serves to mis-educate.
One of the greatest benefits of mediation is that parties maintain control of the process and the outcome. During stressful times like divorce or other serious conflict, people feel their lives are spinning out of control. Having the ability to guide one’s own destiny is crucial – yet highly elusive. Mediation provides that opportunity, as the parties systematically work through the division of assets, child custody arrangements, financial matters, and a myriad of other issues. Most significantly, the individuals – not a third party – are the ultimate decision-makers.
That’s what so insidious about this show. The network website asks: “Why let a judge decide your fate when this ‘Divorce Diva’ can cut through all the drama to determine who will get what?” My response is: Why allow anyone to decide your fate, when you can do it on your own terms?
WHY DOES TV HATE MEDIATORS?
Years ago, attorney Ken Cloke was cast as the judge on a new TV series: The People’s Court. Rather than dictate a result, Ken helped the feuding parties reach agreement.
He was fired after one episode.
More recently, TV gave us Fairly Legal, a scripted show about a woman who ran around San Francisco convening mediations on an hour’s notice. She listened to the parties a good thirty to sixty seconds before telling them what to do and dashing off again.
The newest entry is Untying the Knot, which follows a real-life mediator who works with divorcing couples. I watched the pilot, hoping that this time TV would get it right. Alas.
The episode concerned a couple in conflict over three big-ticket assets. As the treasures were discussed and appraised, the mediator kept reminding the audience that she would “decide” who got what. But when the reveal came, she made recommendations, which – oh, the suspense! – the couple accepted.
So what’s the problem? The “mediators” on these shows ignore foundational principles of voluntariness and self-determination. The character in Fairly Legal operated more like an arbitrator—though without those pesky formalities of sworn testimony, rules of evidence, and a written decision. Or maybe she was psychic, since she solved everyone’s problems without needing to hear much about them.
The attorney-mediator in Untying the Knot at least acknowledged that the result wasn’t up to her. But the clients’ only choices were to accept her recommendations or return to stalemate. Having the mediator facilitate problem-solving – in other words, do what mediators actually do – wasn’t an option.
Why doesn’t TV get it right? For one thing, real mediations take a long time and not every moment is TV-worthy. But consider Shark Tank. In real life, no venture capitalist would make an investment decision in eleven minutes’ time. But the presentations to the sharks actually last as long as two hours and are heavily edited. Televised mediations similarly could be condensed to fit the time slot.
Another reason TV takes liberties is that yelling attracts more eyeballs than do sweet voices. But confusion about what mediation actually is not only does a disservice to the profession, but to members of the public who are involved in serious disputes but don’t want to litigate. It would benefit them to know they have other options. And given the divisions in our political and social culture, society at large could use models of constructive problem solving.
What about Ken Cloke? He’s now a renowned mediator, author, and the co-founder of Mediators Beyond Borders, which has trained thousands of people the world over in peaceful conflict resolution. Thank you, TV, for getting that one wrong.
YET ANOTHER REASON TO AVOID GOING TO COURT
A Florida lawyer and a judge got into a physical altercation over the attorney’s refusal to waive a speedy trial for his client. The judge, captured on video, wished for a rock to throw at the lawyer, then suggested they take it into the rear hallway. Sadly, the video didn’t show what happened next, but scuffling and thuds could be heard. The courtroom erupted in applause when the noises stopped.
The judge has been placed on leave, for anger management counseling. Would you want to appear before him when he returns?