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In the right circumstances, this dispute resolution method can succeed when applied to bullying behavior in the workplace; ALTERNATIVE DISPUTE RESOLUTION
Copyright 2013 ALM Media Properties, LLC – New Jersey Law Journal. All Rights Reserved. Re-printed with permission.
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BYLINE: Patrick R. Westerkamp
In reviewing Sticks and Stones, Emily Bazelon's book on bullying, Andrew Solomon wrote in The New York Times, "[a]dult bullies from talk radio to Congress get constant air time ... in many quarters their belligerence is applauded." Similarly, in workplaces, bullies are applauded and rewarded, especially when their behaviors are seen to have increased output. Times, however, are slowly changing.
Even before the recent dismissal of a Rutgers coach for tirades directed at student athletes, the New Jersey Legislature evinced concern. In 2002, and again in 2010, it enacted laws to restrain intimidation and bullying in schools. Moreover, the passage of N.J. Senate Bill No. 333 would make it unlawful for workers to be subjected to hostile or offensive conduct. This legislation would protect all employees regardless of their protected-class status.
Bullying's hurtful consequences are being addressed not only in the Garden State, but across America. Employers, voluntarily or involuntarily, are caught up in this evolution. In some workplaces, they are considering whether mediation should be part of a cure for bullying. This article will address the pros and cons of this idea.
Bullying is a pattern of intentionally hurtful acts directed at "weaker persons" for the attacker's benefit, occurring in an environment where there is a power imbalance. Its targets often suffer physical and/or mental injuries. Not everyone who causes such pain is a bully. Some of us are merely self-absorbed, and stumble into people's feelings as Mr. Magoo obliviously walks into walls. Others are "jerks" who -- lacking civility -- disrupt groups. Still others of us are loudmouths with minimal emotional intelligence. Bullies are in totally different classes. They can be sorted into two groups.
Class 2 bullies are unreceptive to change. They have personality disorders causing them "to feel and behave in socially distressing ways, limiting their ability to function in relationships and in other areas of their life."www.mayoclinic.com/health/personality-disorders. They often demonstrate mood swings, suspicion and mistrust, poor impulse control, and reliance on alcohol and/or controlled substances. Personality disorders are difficult to cure. Class 2 bullies rarely respond to progressive discipline or coaching.
Class 1 bullies have less psychological impairment. They are motivated by salary increases, bonuses, promotions and recognition for workplace achievements. Their efforts to control others are predominantly linked to hope of personal gain, rather than narcissism.
Acts Combine To Constitute Bullying Behavior
The difficulties in addressing sensitive issues, such as bullying, are encapsulated in the modern adage, "he said, she said." Consider, for example, mechanic Hal Rush, who threatens to quit, absent "something being done about Supervisor Frank." Normally quiet, Hal feels betrayed by the company for permitting Frank's abuse. Frank denies the charge, and pleads guilty to nothing more than a commendable focus on productivity. Human resources must untangle their conflicting perceptions and stories. In conducting an investigation, personnel professionals would do well to look for those behaviors, which -- in varying combinations -- combine to constitute bullying.
One significant behavior to watch for is intimidation. The OSHA Field Health and Safety Manual defines "intimidating behavior" as: "Threats or other conduct that in any way create a hostile environment, impair Agency operations, or frighten, alarm or inhibit others. Verbal intimidation may include making false statements that are malicious, disparaging, derogatory, disrespectful, abusive, or rude." Examples of intimidation include: sullenly staring at the target; using a harsh tone of voice; invading personal space; and using derisive names, e.g., "Baby boy, do this ...."
Other bullying behaviors include:
• Insults, e.g., "You're not worth my time";
• Threats, e.g., "Complain to HR, and you'll be crying";
• Retaliation; • Coercion, e.g., "Time's up. Either get to the point, or sit down";
• Violating personal space;
• Humiliation, e. g., "Is your suit at the cleaners?"
• Put downs, e.g., "If you had more education, you would understand that ...";
• Belittling remarks, e.g., "How's that hamburger diet working for you?"
• Isolation, e.g., the "silent treatment," distancing target from others;
• Smears, e.g., "For your peace of mind, avoid dealing with Karen, she rarely meets deadlines";
• Sabotage of target's work product;
• Unfair, arduous and/or last-minute assignments; and
• Allocating insufficient resources and support.
Environments That Facilitate Bullying Behavior
Bullies thrive in pressure-filled workplaces. These environments normally are managed by high-conflict persons who "encourage inappropriate joking, blaming, insults, sudden changes in work assignments and other impulsive behavior with no logical basis -- just that they can get away with because they are in leadership positions." Bill Eddy, "Mediation with Workplace Bullies," High Conflict Institute (2010), http://highconflictinstitute.com. Organizations that reward such behavior make it "unsafe for anyone to just relax and focus on their work." Id. Weak managers who avoid conflict produce the same result. In brief, bullies prosper in organizations where abuse is either encouraged or ignored.
Employers who have yet to address the issue might consider the links between bullying and chaos on the job. "Violence in the workplace begins long before fists fly." This is shown by a 2012 survey reporting that 41 percent of bullied targets "understand how a person could be driven to hurting or killing those who had bullied them." See Workplace Bullying Institute.http://www.workplacebullying.org/2012/05/03/2012-b/.
Organizations typically progress through four stages when responding to behaviors that society is becoming unwilling to tolerate. This evolution applies to bullying. Employers, at first, deny a problem exists, e.g., "Fred would never do that." In the next stage, as problems are starting to be recognized, victims are made ac-countable for finding their own solutions, e.g., "Ignore him, or tell him to 'back off!'" After shifting responsibility to the targets becomes an acknowledged failure, organizations frequently inaugurate broad-brush educational programs. Integrated solutions are the final step. On accepting ownership of a problem in the fourth stage, organizations move toward correction by: communicating clear expectations; training for workers and managers; announcing rules that will be consistently administered; and remedying victims' injuries.
Remedying Injuries Caused by Bullies Is Costly
Prevention is by and large less expensive than repairing damaged employees. Workers who have been targeted by bullies: have lowered self-respect; dread reporting for duty; isolate from co-workers; deteriorate psychologically and physically; receive below-standard evaluations; lose promotional opportunities; and are more likely to be fired or constructively discharged.
These unpleasant consequences also harm employers. Workers who have been bullied are less productive, take increased sick and personal leave, file disproportionate workers' compensation and disability claims, and are inclined to seek judicial relief.
Even in the absence of anti-bullying statutes, legal theories are available to employees who demand redress. These include: intentional infliction of emotional distress; assault/battery; defamation; and interference with contract. These causes of action are disfavored by the courts, and/or difficult to prove. However, when advanced in civil complaints, they generate defense costs and pressure to settle.
When Might Mediation Be Helpful?
Mediation is facilitated negotiation to resolve disputes. Employment mediators are divided over whether it is appropriate for addressing conflicts flowing from alleged bullying. Those who doubt mediation's effectiveness, view it as an unsatisfactory "short-term fix" for deep systemic issues. As well, they worry that mediators are unable to control volatile participants, or to maintain a level playing field. At a minimum, mediation skeptics argue that the process cannot be successfully applied in the contexts of: criminal conduct; aggression falling short of criminal acts; and/or class 2 bullies.
Other employment mediators are less conclusive. They examine underlying factors before choosing whether to accept these cases. Mediators who are acquainted with the psychology of bullies, and with the law impacting bullying, are best suited to conduct such vettings. They recognize underlying dynamics, including that accused supervisors often feel they are motivating underachievers, while their targets feel psychologically or physically unsafe.
Mediators who accept these challenging cases are most likely to facilitate successful resolutions in organizations that are committed to change, such as by promulgating anti-bullying policies. Given this managerial commitment, mediators are most likely to resolve conflicts involving active employees when: bullying behavior is less severe and/or of shorter duration; the target is prepared to defend his/her interests and has a strong spokesperson; the target has determined her best alternative to a negotiated agreement; one or both participants need to remain with the employer; the organization is sufficiently large to permit transfers; and the target and the aggressor can interact with a degree of mutual respect. Mediation, even when these factors are present, is particularly demanding.
Mediating litigated claims by former employees seeking monetary settlements are less challenging. The dispute resolution dynamics are more akin to those in workplace harassment lawsuits brought by protected class members.
Australia and Quebec, Canada, have enacted workplace anti-bullying legislation. www.workplacebullying.org/the-movement. One-by-one United States jurisdictions will follow suit. Employers now have an opportunity -- in advance of the law -- to limit the social, economic and psychological injuries caused by bullies at work. Mediation is a tool that could have value in such programs if used on a case-by-case basis.
It most likely will be effective in organizations that "recognize everyone's humanity and encourage others to do well." Care Plus Solutions, Inc., (March 2013), http://careplussolutions.com/advantage_work_life.asp. Indi-vidual cases that are most suited for mediation involve:
• Class 1 bullies;
• Targets with sufficient psychological strength to negotiate voluntary and knowing settlements;
• Bullying behavior that has lasted less than six months;
• Participation by the aggressor, the target and an employer representative;
• Need to remain employed;
• Verbal acts only, i.e., no physical aggression;
• Realistic consequences for continued bullying;
• Participation by "support persons," if requested by targets; and
• Recognition that settlements may entail restitution, counsel, coaching and/or training.
Finally, mediator selection is critical. Empathic neutrals with an understanding of workplace dynamics are most likely to provide assistance.
Westerkamp is a mediator at Westerkamp ADR Servic