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Conflict Management E-Newsletter
December 2002 #35
------------------------------------------------------------------ Contents: 1. Articles
2. The Am I Ready to Reconcile Workbook
3. Changes Planned In Federal EEO Complaints Program
4. Training Announcements
5. Objectionable Conduct Not Necessarily Sexual Harassment
6. Fun on the Internet!
7. Quotes
8. New Book: How Companies Manage Employment Disputes
9. Air Force ADR Program Website ------------------------------------------------------------------
1. Articles Mandatory Employment Arbitration Agreements:
The Key To Avoiding A Charge of Unconscionability
By Alyssa Shenk
The current growth of employment litigation is greatly impacting
the American workplace. A fast growing approach employers have
utilized to counter the vast amount of litigation has been to
implement mandatory arbitration agreements. This Article examines
mandatory arbitration agreements as they are utilized in an
employment context.
Requirements for a Feasible Ombuds Office
By Agree Inc
This paper will examine the considerations that go into
establishing an Ombuds Office within an organization, what
constitutes the usual requirements to allow the Office to
perform its functions effectively and some strategic considerations
about how to implement such a plan. The paper identifies a number
of pitfalls that may be encountered along the way
and concludes with some suggestions of what an Ombuds Office can
and cannot reasonably be expected to accomplish.
Neutrality and Power: Myths and Reality
By Rachael Field
Although the theory on the concept of neutrality acknowledges
its difficulties, these theoretical musings have not filtered
adequately to impact sufficiently on the practice of mediation.
On the contrary, most mediators continue to claim that they
are neutral, even though some also claim that they are able
to do things that fly in the face of an asserted neutral
persona. One of these claims is that mediators can redress
power imbalances between the parties.
Learning to Listen
By Laura Davis
True listening is at the heart of reconciliation. It is the
willingness to take in what another person is saying, even if
what they have to say is painful or difficult to hear.
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2. The Am I Ready to Reconcile Workbook
By Laura Davis This work book is free online. It will give you the tools you need
to assess whether or not you are ready to pursue reconciliation at
this time. You will get a clear picture of your hopes and your
desires for reconciliation-as well as an honest assessment of the
barriers in your way.
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3. Changes Planned In Federal EEO Complaints Program According to an article in the Government Executive daily
newsletter, Equal Employment Opportunity Commission Chair Cari
Dominguez indicated that the agency is planning to overhaul
the complaint system for federal employees as early as
September of 2003. Dominguez said that while the EEOC is typically quite involved
in the private sector, she think s it is time the agency became
more involved in the federal sector, and should make
the federal sector a model workplace. EEOC has vowed to reform
the federal sector redress program, and Dominguez stated she
expects to have a proposal for changes ready by the spring and
a final plan developed by the end of fiscal 2003. EEOC commissioners have been listening to officials from various
federal agencies, union representatives, and federal employee
advocates who complain that the process is too lengthy,
the system lacks the ability to weed out frivolous cases, and
that EEOC often fails to penalize agencies for missing
deadlines. Among the ideas mentioned for reform have been
the following: * Improving the quality of investigations
* Allowing the Office of Personnel Management to deal
with non-EEO complaints, such as personality conflicts
* Sorting complaints into three
categories - fast, regular and complex tracks -
to help expedite the process
* Defining a time frame for holding a
hearing after it is requested
* Certifying mediators
* Developing penalties for agencies that miss deadlines
* Increasing EEO funding Problems in the federal program continue to exist, particularly
in the timeliness area. Many federal agencies have backlogs of
thousands of EEO complaints and spin-off complaints.
Agencies have 180 days to complete an investigation of a complaint.
After 180 days, a federal employee can request a hearing
before the full EEOC. Once jurisdiction shifts to the EEOC,
the agency cannot continue its investigation without a judge's
approval. Source: FPMI Communications ------------------------------------------------------------------
4. Training Announcements 4.1 JFKU Coaching Certificate Program Open House This is an opportunity to learn how to advance in your profession
and supplement your skills with a program that offers both skill
training and academic rigor. Choose one of three interdisciplinary
concentrations in Organizational Coaching, Life Coaching or Career
Coaching. You can earn your Coaching Certificate in one and a quarter years
or at your own pace, taking graduate credit courses evenings and
weekends. The certificate can stand alone or be part of a master's degree.
Program starts January 2003. Limited enrollment. You are invited to
John F. Kennedy University Coaching Certification Program Open House
December 13, 6:30 - 8 pm
Morrison Hall, Room 201
12 Altarinda Road, Orinda CA 94563-2603
RSVP and information: coach@jfku.edu 4.2 Powerful Non-Defensive Communication Workshop
with Mady Shumofsky
If you are looking for effective tools to use when co-workers,
clients, friends or family are attacking / blaming / withdrawing /
entrapping / justifying / surrendering / sabotaging or when YOU
are! this workshop was designed for you. Develop your skills in asking non-threatening questions, stating your
views clearly without escalating power struggle, and
setting limits that work for you. Thursday, December 12, 2002 -- 9:30 a.m. - 4:30 p.m.
Location: Robinson Classroom B, 1204 Preservation Park Way
(near 12th Street BART Station, in Oakland)
Cost: $85.00 (partial scholarships available)
For more information: madyshum@earthlink.net or (510) 531-8200. --------------------------------------------------------------
5.Objectionable Conduct Not Necessarily Sexual Harassment Two recent cases describe boundaries of objectionable conduct
in sexual harassment suits. The 8th Circuit Court of Appeals set aside a million dollar
judgment against General Motors Corporation won by former
employee Diana Duncan. Duncan was subjected first to a request
from her supervisor for a sexual relationship and then, following
the rejection of that invitation, to a pattern of
boorish behavior, inappropriate assignments, and sexual
innuendoes. She spoke widely of the behavior to others but
did not formally complain for two years after the conduct
started. She resigned her position and filed a sexual harassment
and constructive discharge lawsuit. The court of appeals found the conduct was not severe enough
to alter a term, condition, or privilege of employment. The
environment must be objectionable to both the victim and to a
reasonably objective person. The circumstances must be frequent,
severe, physically threatening, or humiliating, and
unreasonably interfere with the employee's work performance.
It requires more than "the ordinary tribulations of the
workplace, such as sporadic use of abusive language,
gender-related jokes and occasional teasing."
Duncan v. General Motors Corp.
8th Cir. Ct. of App. (August 22, 2002) No. 00-3544/02-1411 A recent California Court of Appeals decision sheds additional
light on when a single incident can justify a legal claim. At age 82, Mary Herberg worked as a cashier for CalArts, a
private school providing degree programs in fine and performing
arts. Her daughter, Bobette Heuer, was the school's director of
financial aid, and Heuer's daughter, Deborah Dutro, also
worked for the school. As part of a student art display, a student prepared a drawing
showing Herberg and other faculty and staff engaged in various
sexual acts. Herberg was depicted bare-breasted atop a nude male
faculty member as if engaged in sexual intercourse. Dutro was the first to complain to her supervisor about the display.
Later that morning Heuer complained to senior management and
the human resources director. Heuer and Dutro told Herberg
about the drawing. Although she did not see it, Herberg was
so upset about the drawing that she left work immediately.
She later suffered an asthma attack, developed problems eating
and sleeping, and never returned to work. The drawing remained on display all day and during a reception
held that evening, and was finally removed at 4:00 the next
morning. All three family members filed an employment
discrimination suit under the Fair Employment and Housing
Act alleging hostile work environment sexual harassment. Citing cases decided by the federal 9th Circuit Court of Appeals,
the court concluded that for a single incident of severe harassment
to be sufficient to support a legal claim, it must be
severe in the extreme and generally include physical violence
or a threat of physical violence. The court noted that
neither Heuer nor Dutro were depicted in the drawing and none
of them had been subject to physical touching or verbal abuse.
Herberg v. California Institute of the Arts,
Cal. App. 2nd Dist (August 13, 2002) No. B148834 Cal Chamber of Commerce --------------------------------------------------------------
6. Fun on the Internet! The parties' positions are dynamic and unstable. Try to stabilise
the topology on this interactive landscape with your mouse-over
position. Just like conducting a mediation.
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7. Quotes "Conflicts are laden with information that is essential for our
growth, learning, intimacy, and change."
Ken Cloke "In our society, we don't naturally look inside ourselves for
the source of conflict, we look outside."
Theodore Dobson ------------------------------------------------------------------
8. New Book How Companies Manage Employment Disputes CPR Institute has published a compilation and analysis of a group of
programs used by corporations and govt agencies to manage workplace
conflicts. The purpose is to assist companies who are considering such programs post-Circuit City, and to advise the ADR community in general of the current state of the art. Information on the volume, titled How Companies Manage Employment
Disputes, appears at http://www.cpradr.org/pdfs/empbkord.pdf ------------------------------------------------------------------
9. Air Force ADR Program Website
The Air Force ADR Program is the exemplar program in the federal
government, having received numerous awards for its efforts to
bring resolution to costly and time-consuming disputes.
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10. Feedback and Subscriptions welcome If you have any suggestions, tips, or other comments,
send an e-mail to johnford@mediate.com.
New subscriptions are welcome. Forward this to a
friend or colleague. ------------------------------------------------------------------
The Conflict Management E-Newsletter
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