Respect in Mediation: A Counter to Disrespect in the Workplace - Chapter 14 - AAA Handbook on Employment Arbitration and ADR - Third Edition

Page Count:

14 pages

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1 PDF Download

Published:

December, 2015

Author Detail:

Vivian Berger is the Nash Professor of Law Emerita at Columbia Law School. An active mediator since the mid-1990s, Prof. Berger specializes in employment mediation. She mediates privately, serves on the AAA mediation panel and mediates employment disputes for the Equal Employment Opportunity Commission and the U.S. District Courts for the Southern and Eastern Districts of New York. She has met the criteria for the designation Advanced Practitioner in employment mediation by the Association for Conflict Resolution.

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Originally from:

AAA Handbook on Employment Arbitration and ADR - Third Edition

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I. Introduction

Respect is a universal need. Unfortunately, its opposite, disrespect, can be found in many places of employment, from corporate board rooms to assembly lines. Work plays a central role in the lives of Americans; much of our sense of identity and worth, our self-respect, is determined by how well we are doing at work and how our co-workers and bosses perceive us. Yet, never before in recent years has the job environment been less hospitable to employees. Global competition, deunionization, outsourcing, downsizing, and the continuous march of technology all make for disposable employees. The imperatives of the bottom line and shareholder value have turned the workplace into an insecure pressure cooker. Tensions are exacerbated when employees have to work with colleagues who fail to treat them with respect.

No one can quantify the degree to which disrespect in the workplace has contributed to employment litigation. Although the employer may be justified at times in taking adverse action against the employee, doing so in a manner that the latter perceives as disrespectful needlessly adds insult to injury. Demeaning exit protocols—for example, parading discharged employees out of the office, in full view of their erstwhile colleagues, flanked by security personnel—often produce anger sufficient to fuel a lawsuit. From the employee’s point of view, litigationmay be the only means to get the respect he feels he is due. This can be costlier to the employer than any sabotage by departing employees.

Sadly, in most cases, lawsuits represent a “lose-lose” proposition for both sides. Employers spend huge sums on attorneys and endure business disruption. Employees avoid having to pay for legal representation through contingent-fee arrangements (if they are fortunate enough to find a lawyer willing to represent them), but they suffer in more intangible ways. They are usually completely unprepared to endure the emotionally draining litigation process, and they have no concept of how long it can drag on. Even when forewarned by their lawyers, they may find it hard to imagine the stress involved in providing deposition and trial testimony and in having their behavior scrutinized and attacked by opposing counsel.

If after discovery the judge dismisses the complaint, the employee feels disrespected again—this time by the very institution on which he relied for vindication.