I had the privilege of attending the ABA's 2023 Advanced Mediation and Advocacy Skills Institute, and weeks later, I am still processing some of the thought-provoking topics covered by the Institute. If you have 2-3 minutes today, read my newsletter below and let me know what you think! I am trying to keep these newsletters easily digestible. And, as always, I appreciate you considering me for any upcoming mediations or workplace investigations you may have and referring me to your colleagues. |
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I'm going to state an uncomfortable truth. Social status is important. And understanding social status makes a difference in my work as a neutral investigator and mediator. The Oxford definition of social status is a person’s standing or importance in relation to other people within the same society. Historically, higher social status was linked to greater access to partners, abundant food, and safety and security for yourself and family. When researching the role of social status in my work, several articles I read concluded that higher social status came with perks – higher self-esteem, feelings of belonging and greater access to resources and influence. The higher social status you can achieve, the more likely you are to experience happiness and contentment. And, conversely, if you have lower social status, or your social status is threatened somehow, you aggressively defend your social status because you fear losing that happiness and contentment. I have witnessed these phenomena play out in workplace investigations. Let’s take a white manager accused of discriminating against a Hispanic employee, his direct report. The Hispanic employee complains that his manager gives him the unattractive shifts compared to his white colleagues and gives him fewer opportunities or promotions. When questioned by Human Resources, the white manager becomes defensive; he understands that racism is not acceptable at the Company, but he is outraged by the complaint and the Company’s decision to investigate. The manager resists the investigation, and fights tooth and nail to convince his employer that he is not a racist. A part of the white manager’s status in society is that of a non-racist. During the investigation, the white manager becomes defensive and sets out to prove that he is not a racist manager, not only to protect his livelihood but to protect his social status. In this kind of workplace investigation, consider hiring a third-party investigator and not relying on internal resources. The workplace investigator should come across as a neutral and a fact finder brought in by the Company to collect facts. The investigator must convey that she is not meeting with the manager to form an opinion about the manager or to judge him. She does not come to the investigation with a preset opinion, nor will she leave the investigation with a judgement against the manager. In this way, the investigator can establish that she is not seeking to impact the manager’s social status. Once the manager is reassured that the investigator’s role is limited to collecting facts and ascertaining credibility, he no longer feels like the investigator is the arbiter of his social status. He is more likely to relax and reveal the basis for his decision-making. |
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In defense of remote mediations … Many lawyers hold firm that in person mediations are more effective than remote mediations. I like in person mediations. I enjoy meeting new people and hearing their stories face-to-face. I like the (hopefully) friendly banter with parties, and (often) find it easier to convey my warm but direct communication style. There’s a connection you can achieve in person that is much harder to find over Zoom. And it’s relaxing not to worry about technological failures. But, aside from the obvious benefits (convenience, cost, time), Zoom mediations offer other benefits you may not fully be aware of if you don’t mediate over Zoom often. Parties often feel less vulnerable and more relaxed over Zoom. Those are key when trying to encourage dispute resolution. Parties are less likely to become overly excited or furiously angry over Zoom. It’s easier to restore calmness over Zoom. Often, mediators and even counsel are more likely to observe body language information because they are limited to facial expressions. When limited to just the face, you may pick up on furrowed and raised eyebrows, forehead rubs, curt or strained smiles, pursed lips, and you are not distracted by other stimuli. This becomes critical in assessing whether your client is keen on the settlement proposal or distressed by the feedback from the other party. Not all disputes are conducive to remote mediation. And, not all mediators mediate effectively over Zoom. I encourage counsel to be open to remote mediation as an option. You just might find that your otherwise-anxious client is much more relaxed when she is in her own environment and isn’t burdened by travel, or that your mediator is more in tune with your client’s reactions when other stimuli are eliminated from the scene. Let me know what you think! And, either way, your favorite mediator offers both in person and Zoom mediations for your dispute. |
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Find out more about my experience at https://www.mediationmaven.com/experience Email me or call me at 713-857-0909 to discuss an upcoming workplace investigation, to schedule a mediation, or with questions. |
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