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In the Eye of the Beholder: Using Perceptual Errors to Resolve Employment Disputes - Chapter 4 - AAA Handbook on Employment Arbitration and ADR - Third Edition

Author(s): 
Melissa Janis
Page Count: 
12 pages
Media Description: 
1 PDF Download
Published: 
December, 2015
Author Detail: 

Melissa Janis is President of Dovetail Solutions, LLC, a consulting practice specializing in workplace conflict resolution services. She provides organization development, mediation, and training services in the New York area.

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Originally from:

AAA Handbook on Employment Arbitration and ADR - Third Edition

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I. Introduction

 

In my undergraduate days, I was a lab assistant for a cognitive psychology class. Each week, I taught about a different aspect of perception, and conveyed the same message: our experiences and reality are not equal.
 
It was fascinating to demonstrate that color is not real, that your experience of color is based on your perception of light rays bouncing off the surface of an object. Sound is not real either; your experience of sound is based on your perception of vibrations (so if you were wondering, if no one is in the woods to hear a tree fall, it does not make a sound, only vibrations). Your perception of the world differs from mine, and neither is reality.
 
The possibility for two individuals to experience the same event differently is frequently acknowledged in employment mediation. The phrases “from my perspective” and “from your perspective” are invoked by counsel to respectfully recognize another’s position and preface one’s own.
 
Mediators use them to validate feelings and to encourage the parties to move off positions. Although the existence of multiple perspectives is routinely accepted in the employment mediation context, exploring the reasons for their existence is not.
 
In resolving employment disputes, participants often look to the “merits,” and accordingly, the reasons underlying differences in perception are regarded as irrelevant. Both counsel and the mediator typically fear igniting emotions and tend to view employment cases as statutory concerns. These preoccupations keep employment mediation on a legalistic path, which differs significantly from mediation in other contexts.
 
By and large, employment mediations are conducted like a settlement conference: the emphasis is on evaluating the strengths and weaknesses of each case and speculating about the likely outcome of litigation.
 
Indeed, in the employment mediation survey discussed by Robert Lewis in the Journal of Alternative Dispute Resolution in Employment, every employment attorney surveyed preferred a mediator who “forcefully and vigorously reviews with each party, in confidence, the mediator’s opinion of the likely outcome of the case.”1 Movement toward settlement is achieved by evaluating each side’s weaknesses combined with the time and costs associated with future litigation and then comparing this “package” to an outcome in the present.