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When Negotiation Fails, Why Not Mediate? An Exercise to Introduce Students to Mediation as an Essential Dispute Resolution Tool Karen A. Reardon La Salle University Abstract This article introduces an exercise that enables human resources (“HR”) students to experience mediation as an essential dispute resolution tool. Students play various roles such as a mediator, party to the dispute, impacted supervisor, or human resources representative of the involved company. Students actively work to fashion a collaborative solution to an employment-related dispute in the context of an Equal Employment Opportunity (“EEOC”) charge against an individual and the company alleging workplace sexual harassment. The exercise was originally developed for a face-to-face MBA class. However, it is also appropriate for courses in human resource management at both the graduate and undergraduate levels. With modifications, it can also be used in synchronous online classes. Keywords: applied learning, pedagogy, mediation, negotiation, dispute resolution, human resources, management Introduction Mediation, or a facilitated negotiation that employs a neutral third party with “no power to prescribe agreements or outcomes,” is an important tool for finding agreement to resolve conflict (Wall & Dunne, 2012, p. 218). Cousins (1999) described mediation as a “forgotten topic.” Some twenty years later, that mediation still may not be top of mind for HR management educators is problematic because its practice is prevalent and growing in the business world and as is the demand for skills in mediation and other methods of workplace conflict management (Brubaker et al., 2014). In the last decade, the U.S. Equal Employment Opportunity Commission (U.S. EEOC, 2021) helped resolve over 100,000 workplace disputes using mediation, thus avoiding costly litigation. Wall and Dunne (2012) report that parties generally have a favorable view of mediation, with approximately 80 percent of mediations resulting in agreement. Still, Brubaker observes that “parties are reluctant to mediate, in part due to a lack of familiarity with the process,” which makes education about mediation and its power so important (Brubaker et al., 2014, 365). Thus, there is little question that mediation is a valuable tool to which students should be introduced. Mediation is emerging as a critical tool for contemporary human resource management practice which scholars advocate should focus on realigning HR’s role in promoting employee well-being an important component of the organization’s overall strategic goals and objectives. Journal of Human Resources Education 61 Vol. 17, No. 1/2, Winter/Spring 2023 (Cowan et al., 2021). HR practitioners are recognizing and promoting the importance of mediation as a tool in that effort and there is much to be learned from their experiences with it. (Forbes 2021) That said, and as discussed further below, “tales from the front” are not sufficient; hands-on interactive experiences being the preferred method for teaching and learning mediation (Walsh 2015) so educators have an important role to play as well. Thus, this article introduces a mediation exercise fashioned around an EEOC dispute in which one employee charges a co-worker and the company with sexual harassment. The mediation is facilitated by the EEOC and includes the participation of the employees’ manager as well as an HR staff member representing the interests of the company. This is but one type of mediation that is associated with an administrative proceeding in which human resources professionals may be asked to participate as a company representative. In fully internal disputes such as those involving workplace bullying (Cowan et al., 2021), HR may be approached to act as a mediator to facilitate the resolution of a dispute between or among employees. Most workplace disputes are amenable to resolution through the use of mediation, though employment handbooks or union contracts may designate a separate procedure or process (such as litigation or arbitration) for hearing and resolving certain disputes. Employee handbooks also may outline how mediation is to be conducted. Mediation Education, Training, and Skill Development Mediation education and training providers have traditionally emphasized hands-on, interactive approaches to teaching mediation, particularly the use of role-play and simulation (Walsh, 2015) and our experience aligns with this practice. Walsh notes that practitioners and students concur on the value of role-play in teaching mediation. Harvard Law School offers a feebased library of mediation exercises (Program on Negotiation, 2021); however, the purchase of such materials is not a viable option for many, especially those at resource-constrained universities. As an alternative, this article offers a complimentary role-play exercise that familiarizes students with the mediation process by putting them in roles associated with workplace mediation, in a case involving a dispute over a sexual harassment charge made by an employee against both a coworker and the company. I have used this exercise in both graduate and undergraduate courses and in training for university faculty serving on a university-wide mediation committee with the charge to mediate faculty disputes. The host instructor for a class in which I ran the exercise as a visitor had this to say about the exercise. You… present[ed] a very interesting experiential exercise on mediation. I was struck with how much richer you were able to make the idea of mediation to my students. I had previously presented a bare shell of the concept of mediation, but after the exercise and debrief, I think students could appreciate the nuance and difficulty of moving two parties toward a negotiated settlement. (Host instructor, personal communication, 2015) Conservatively, more than 275 participants have experienced this exercise, responding to its immediacy, authenticity, and relevance. Based on self-reports in both the debriefing and written assignments, students suggest that it is likely to be a tool they expect to be able to use almost immediately in the workplace. Journal of Human Resources Education 62 Vol. 17, No. 1/2, Winter/Spring 2023 Exercise Overview The “Drinks After Work” exercise is a mock workplace mediation involving a dispute in which Bob, a newly hired engineering manager, accuses Lisa, a VP of accounting, and their employer, the ABC Company, of sexual harassment. Representing ABC at the mediation is Harper from Human Resources. Also present is Vic, the Executive Vice President who is the direct supervisor of both Bob and Lisa. Max, an EEOC mediator, has convened the group and serves as the mediator. In other versions, Max is joined by Morgan who functions as a co-facilitator. Other included roles may be assigned to accommodate more participants. Learning Objectives After participating in the exercise, students should be able to: • • • • Explain the mediation process and its component parts, including the importance of each part in achieving, implementing, and sustaining a satisfactory outcome for the parties involved. Recognize and understand participants’ emotions, rights, interests, and needs with the aim of advancing the conflict toward resolution. Demonstrate the skills of active listening and paraphrasing as well as sharing empathetic responses, expressions of gratitude, and personal affirmation as they work to resolve the dispute. Identify overlaps in the parties’ interests as the best alternative to a negotiated agreement (BATNA) and possible foundations for a sustainable negotiated resolution. Overall, the goal is for the students to understand mediation in practice and appreciate the relevance of what they have studied throughout the course through reflection, sharing, and comparing experiences (Griffith & Goodwin, 2013). Theoretical Foundation of the Mediation Process Most mediators begin their work with the goal of obtaining agreement (Wall & Dunne, 2012). Getting to agreement is the challenge. Williams and Hinshaw (2019) note that strong emotions are a fundamental component of the conflict experience; because emotions affect our body’s response, our thoughts, and our responsive actions, they can function as barriers to agreement (Frenkel & Stark, 2012) or facilitate agreement (Adler et al., 1998). Thus, Williams and Hinshaw suggest that mediators must practice identifying and understanding emotions and their expressions in order to discern underlying interests and keep the dialogue moving toward resolution. Emotional responses that are ignored or otherwise set aside may derail a mediation. Journal of Human Resources Education 63 Vol. 17, No. 1/2, Winter/Spring 2023 Storrow and Coleman (2020) suggest that a key to effective mediation lies in developing rapport, i.e., relationships based on understanding, empathy, and trust. Those who practice mediation agree. According to a 2017 study by the ABA Dispute Resolution Section, mediators believe that the key to facilitating agreement is empathic listening and expressing genuine caring about the parties’ feelings, needs, and concerns through expressions of sincerity, likeability, compassion, integrity, patience, and empathy (cited in Storrow & Coleman, 2020). Likewise, scholars agree that using expressions of gratitude in mediation may help mediators chart a course toward agreement in three ways: first, by expressing thanks to “upstream” reciprocal gratitude; second, by encouraging disputants to offer sincere apologies when and where appropriate; and third, by using demonstrated expressions of gratitude as leverage for possible concessions (Williams & Hinshaw, 2018). In addition, other research reveals that mediators who encourage disputants to think positively about the other party (i.e., other-affirmation) may facilitate agreement by both increasing open-mindedness and by reducing defensiveness which may otherwise impede the path to agreement (Harinck & Druckman, 2019). In short, the mediator must artfully employ a set of skills to chart a conversational path that explores and prioritizes interest-based solutions while acknowledging rights-based alternatives. Poitras et al. (2015) identify these skills in their study of managerial mediation competency; see Table 1. Table 1 Skills and Attitudes that Characterize Effective Managerial Mediation Category Specific skill or attitude • Understanding concerns • Identifying underlying interests Emotional Skills • Accounting for emotions (e.g., allowing expression, acknowledging, and restating) Behavioral Skills • Encouraging perspective-taking. • Encouraging exploration of solutions • Facilitating agreement implementation • Being impartial Cognitive Skills Attitude Adapted from Poitras, et al., 2015, p. 114. Journal of Human Resources Education 64 Vol. 17, No. 1/2, Winter/Spring 2023 Teaching Materials All materials needed to prepare for, execute, and debrief the exercise are found as appendices to this article as follows: • • • • • • Appendix A: Instructor Teaching Notes Appendix B: Cast of Participants and Common Facts Appendix C: Confidential Facts for Participants Appendix D: Sample Agreements Appendix E: Optional Assignments Appendix F: Restructuring the Exercise for Online Learning Conclusion Mediation is becoming an ever more important process in resolving workplace and other business disputes, particularly in organizations where employee well-being is prioritized. HR professionals will increasingly be called on the participate in and/or facilitate such mediations. This exercise familiarizes students with the process and provides the opportunity to practice resolving a dispute using active listening, paraphrasing, empathetic responses, expressions of gratitude, and other affirmations (and to observe the impact when these skills are weak or absent); the identification of relevant interests for crafting solutions that are likely to last; and the leverage represented by the parties’ respective BATNA. By creating an opportunity for students to apply what they have learned, this exercise prepares them to be more open to mediation in the workplace as well as to be better advocates and conciliators in workplace disputes. It has the demonstrated potential to serve as a significant, integrative, and lasting learning experience. _______________ Karen A. Reardon, Ph.D., J.D. is an associate professor in the Management and Leadership Department at La Salle University. She earned her Ph.D. from the University of Michigan, her J.D. from Vanderbilt University, and her B.A. from the University of Pennsylvania. Inquiries about this article may be directed to her at [email protected]. References Adler, R. S., Rosen, B., & Silverstein, E. M. (1998). Emotions in negotiation: How to manage fear and anger. Negotiation Journal, 14(2), 161–179. https://doi.org/ /10.1111/j.15719979.1998.tb00156.x Albright, R. R., & Finn, D. (2021). Negotiating quality and productivity: An experiential exercise. Management Teaching Review, 6(4), 361–374. https://doi.org/10.1177/2379298120905303 Brubaker, D., Noble, C., Fincher, R., Park, S. K. Y., & Press, S. (2014). Conflict resolution in the workplace: What will the future bring? Conflict Resolution Quarterly, 31(4), 357–386. https://doi.org/10.1002/crq.21104 Journal of Human Resources Education 65 Vol. 17, No. 1/2, Winter/Spring 2023 Cousins, R. B. (1999). Demonstrating mediation (OB’s forgotten topic) through the use of role playing. Journal of Management Education, 23(2), 201–208. https://doi.org/10.1177/105256299902300209 Cowan, R.L., Clayton, E. and Bochantin, J. (2021). Human Resources as an important actor in workplace bullying situations: Where we have been and where we should go. In P. D’Cruz, et al. (Eds.), Pathways of job-related negative behaviour (477-494). Springer. Forbes Human Resources Council. (2021). 16 HR Leaders Share Their Best Tips for Mediating Workplace Disputes. Forbes. Retrieved April 3, 2023, from https://www.forbes.com/sites/forbeshumanresourcescouncil/2021/10/28/16-hr-leadersshare-their-best-tips-for-mediating-workplace-disputes/?sh=31675c4c3a21 Managing Editor. (2022, May 24). Workplace mediation video, ABA. Mediate.com. Retrieved September 18, 2022, from https://www.mediate.com/articles/mediationworkplacevid1.cfm FINRA. (2021). 2020 dispute resolution statistics. https://www.finra.org/arbitrationmediation/dispute-resolution-statistics/2020 Frenkel, D. N., & Stark, J. H. (2012). The practice of mediation (2nd ed.). Aspen. Griffith, D. B. & Goodwin, C. R. (2013). Conflict survival kit: Tools for resolving conflict at work (2nd ed.). Pearson Education. Harinck, F., & Druckman, D. (2019). Values and interests: Impacts of affirming the other and mediation on settlements. Group Decision and Negotiation, 28(3), 453–474. https://doi.org/10.1007/s10726-019-09620-x Moore, J. K. (2014). The reflective observer model. Conflict Resolution Quarterly, 31(4), 403– 419. https://doi.org/10.1002/crq.21094 Poitras, J., Hill, K., Hamel, V., & Pelletier, F. (2015). Managerial mediation competency: A mixed‐method study. Negotiation Journal, 31(2), 105–129. https://doi.org/10.1111/nejo.12085 Program on Negotiation. (n.d.). Teaching materials & publications: Role simulations. Harvard Law School. https://www.pon.harvard.edu/shop/category/role-simulations/ Sebok, T. (2002, October 28). Preparing for your mediation. Mediate.com. Retrieved September 18, 2022, from https://mediate.com/articles/sebokt.cfm# Storrow, R., & Coleman, H., Jr. (2020). Exploring research regarding mediation party preferences and mediation within commercial arbitration. Conflict Resolution Quarterly, 37(4), 289–303. https://doi.org/10.1002/crq.21278 Journal of Human Resources Education 66 Vol. 17, No. 1/2, Winter/Spring 2023 U.S. Equal Employment Opportunity Commission. (2021). EEOC mediation statistics FY 1999 through FY 2020. https://www.eeoc.gov/eeoc-mediation-statistics-fy-1999-through-fy2020 Wall, J. A., & Dunne, T. C. (2012). Mediation research: A current review. Negotiation Journal, 28(2), 217–244. https://doi.org/10.1111/j.1571-9979.2012.00336.x Walsh, S. (2015). Beyond the role-play: Re-thinking mediator education. Journal of Mediation & Applied Conflict Analysis, 2(2), 317–327. https://doi.org/10.33232/jmaca.2.2.6256 Williams, K. E. G., & Hinshaw, A. (2018). Outbursts: An evolutionary approach to emotions in the mediation context. Negotiation Journal, 34(2), 165–186. https://doi.org/10.1111/nejo.12222 Journal of Human Resources Education 67 Vol. 17, No. 1/2, Winter/Spring 2023 Appendix A Instructor Teaching Notes Logistics Multiple mediations can be run simultaneously to facilitate maximum participation. You will need access to additional classroom space, breakout rooms, offices, or hallway space for the various meetings that will take place. The exercise works best using one three-hour session or two seventy-five-minute sessions. The exercise also may be run in a remote (synchronous) classroom; see Appendix F for this variation. Preparation Assign each student a role in the mediation. Certain roles (i.e., Lisa, Bob, Harper, Vic, and Max) are essential to the mediation. When co-facilitated, Morgan, another mediator, is added. Other roles are optional and can be added to involve more participants and/or jettisoned to work around space limitations. (See Appendix A for all roles.) Consider the demonstrated skill and ability of the students and their attendance record in assigning essential and peripheral roles. Give each student the Cast of Characters (Appendix B), the Common Background Information (Appendix C), and the Confidential Facts (Appendix D) associated with their role. Ask students to complete the following steps, either in class or independently: • • • • Watch a short video that illustrates the process (ABA Managing Editor 2022) and differentiates mediation from arbitration and litigation. Read an article on preparing for the mediation process (Seebok 2022). Study the cast of characters, common background information, and confidential facts associated with their assigned role (Appendices B, C, and D). Conduct research to identify sample confidentiality and settlement agreements and how they are used in mediation (See Appendix E for sample agreements). Day of Mediation Before commencing the mediation, conduct brief meetings with each group of students, comprised of persons playing the same role. Use this time to answer questions and provide rolespecific instructions as applicable. Remind students to: • • • Stay in role throughout all sessions. Share confidential information only as it is in their interest and naturally elicited through the process. Ask substantive questions of the instructor only in the presence of others with the same role, in order to avoid inadvertently conveying confidential information. Journal of Human Resources Education 68 Vol. 17, No. 1/2, Winter/Spring 2023 • In the meeting with only those playing Bob: 1) Remind students that his lawyer will not be present at the mediation, but that Bob should consult with the lawyer (by asking to meet with you, the instructor) before making any material commitment such as agreeing to any action or accepting any settlement. 2) Instruct Bob that until the matter is resolved, he will continue to incur legal fees which he must pay; any settlement will need to cover those fees. If Bob asks to meet with his lawyer during the mediation, play that role and simply remind Bob that: a) while the ultimate decision is his, you believe he has a good legal case, b) he wants that promotion badly and may be able to use these proceedings as leverage, and c) he will need to pay fees until the conclusion, and because of the present meeting, his fees have increased by $500. • In the meeting with only those playing the mediators: 1) Direct them to begin the mediation with introductions as demonstrated in the “Why Mediate?” video. 2) Instruct them to organize the sessions, including breakouts or caucuses, as they deem fit (and especially as a way of diffusing highly emotional exchanges). 3) Advise them about available space for these breakout sessions. 4) Suggest that the mediator provide “homework” for any individual or group to do while they are not meeting with a mediator (e.g., things for them to think about, questions to answer, solutions to suggest, etc., that are calculated to advance the dispute toward resolution when they actively re-engage). Aside from the above directions, respond to any student questions during the mediation with “you decide” or “review the background facts and improvise consistent with those facts.” Direct the participants to begin the mediation. During the exercise, make detailed notes of events, emotions, and responsive interventions. This will prepare you to act as the “reflective observer” (Moore, 2014) in leading the students in a debriefing on the experience. Journal of Human Resources Education 69 Vol. 17, No. 1/2, Winter/Spring 2023 Debriefing Begin the debriefing process immediately after the mediation. The goal is for students to appreciate what worked well to unearth facts and move the parties toward understanding and agreement, what did not work well, and what processes and tools could have been used to facilitate fact-finding, discussion, and agreement. Specifically: 1) Ask students to share their experience of the mediation and entertain questions. 2) Probe them for what they think happened between Lisa and Bob to ascertain what additional information beyond the common facts they learned though the mediation process. You may share the confidential information so students might appreciate what more they might have learned (and from whom) that could have assisted them in getting to a resolution. If there are different outcomes to competing mediations, discuss if there is a favored outcome among them and why. 3) Ask students to share what they believe was effective in moving the dispute toward resolution and what operated as an impediment. 4) Have students identify examples of where they or others used (or might have used) such skills and strategies as active listening, paraphrasing, empathetic responses, expressions of gratitude, other-affirmation, and caucuses. Ask how they believe such behaviors (or the absence of them) impacted the ongoing discussion. As an active observer of the mediation, you should be prepared to share specific examples of each behavior (or its absence) and its impact. 5) Ask students to identify skills learned and connections to other course content. 6) As they do, point out and emphasize emergent themes. Make students aware of the prevalence of these across competing mediations (when applicable), the circumstances under which they arise, and how often they occur. Journal of Human Resources Education 70 Vol. 17, No. 1/2, Winter/Spring 2023 Appendix B Cast of Participants and Common Facts [Materials to be distributed to all participants] Cast of Participants Bob, the Engineering Manager, is a male in his 40s employed by ABC. He was heavily recruited by the company to manage its engineering team. He has worked for the company for a short time only. He reported to the VP of Engineering who recently left for a better opportunity. The VP of Engineering position has just become available, and Bob is eying that job as a promotion opportunity. Lisa, the VP of Accounting for ABC, is a female aged 35. She has been with ABC since college and has received steady promotions. A rising star, Lisa aspires to be ABC’s president one day. Her reputation is of critical importance to her. Harper, the Manager of HR for ABC, is responsible for handling all employee complaints alleging discrimination, harassment, and illegal or unethical behaviors. Harper represents ABC at the mediation. Vic, the Executive VP of ABC, oversees all vice presidents of the company, including the VP of Accounting and the VP of Engineering (a job that is currently vacant). Thus, Vic is presently the supervisor of both Lisa and Bob. Vic reports directly to the president and leads the search for the next VP of Engineering. As the supervisor of both Bob and Lisa, Vic has been asked to attend the mediation to provide any and all relevant information that might help resolve the dispute. Max is a mediator with the EEOC assigned to the case of Bob vs. ABC. Thus, Max has asked Bob, Lisa, and ABC to participate in mediation in an attempt to resolve Bob’s complaint against ABC. In complex cases, Max asks Morgan, a colleague, to work as a co-mediator to aid in the attendant negotiations. Morgan is a mediator with the EEOC who specializes in complex disputes and often is called upon by colleagues to assist in co-facilitating difficult cases. Sam, an EEOC supervisor, and a very successful and highly experienced mediator, may drop in to observe the proceedings. Ryan, a reporter, may be given permission to observe to write a story about mediation as an effective means of dispute resolution. Journal of Human Resources Education 71 Vol. 17, No. 1/2, Winter/Spring 2023 Common Facts ABC Company is a manufacturer of parts for the aerospace industry. Lisa and Bob work on parallel teams. Neither reports to the other, but company work requires that their teams work collaboratively on projects. Bob asked Lisa if they might meet to talk about a project they are currently working on, as well as to learn about the company culture from Lisa. Lisa agreed and suggested they meet after work over drinks at a local bar frequented by company employees. Bob and Lisa had a productive first meeting. Bob thanked Lisa and suggested they do this on a regular basis. Lisa agreed. With the assistance of his attorney, Alex, Bob has filed a charge with HR and the EEOC against Lisa and ABC, claiming he has been subject to sexual harassment by Lisa. The EEOC has appointed Max, a mediator, to work with this case. Morgan, a colleague at the EEOC who co-facilitates complex cases may be working with Max as a co-mediator. Max has asked Bob, Lisa, and ABC to participate in mediation in an attempt to resolve Bob’s complaint. All have agreed to attend the mediation. ABC will be represented at the mediation by Harper, the manager of HR for ABC, and Vic, the Executive VP of ABC, to whom both Bob and Lisa report. Sam, the EEOC Chief Mediation Supervisor may choose to observe the proceedings. Ryan, a reporter writing a story about mediation as a dispute resolution process may also be in attendance. Journal of Human Resources Education 72 Vol. 17, No. 1/2, Winter/Spring 2023 Appendix C Confidential Facts for Participants [Materials to be distributed only to persons playing the respective roles] Bob – Engineering Manager: Confidential Information After several meetings with Lisa, you started to feel uncomfortable and decided that subsequent meetings were a bad idea. You regretted even suggesting that you and Lisa meet in the first place. You sensed that Lisa thought there was “more” to your meetings than business. You have encountered such women before, and definitely prefer working with people like your VP Vic. You expect that Vic will promote you to VP of Engineering soon, now that you have handled some of the problems you inherited with the new product about to be launched. There were serious safety issues identified that your team has spent countless hours working to solve. Vic does not know yet just how much personal time you have sacrificed to right that ship. After only a few meetings, Lisa’s real interest in you became clear. You stopped extending invitations to meet with her and declined repeated invitations from Lisa. Her calls and e-mails now make you very uncomfortable. She will not take “no” for an answer. After repeated phone calls and e-mails from Lisa, you reluctantly brought the situation to the attention of HR, reporting that Lisa is sexually harassing you. When you discussed this with your friend Alex, an attorney, she offered to represent you in filing a charge with the EEOC. Alex said that unless you did so, Lisa could claim you are the aggressor, so you needed to get out front and perfect your claim. While you initially were reluctant to file a claim before the matter was resolved in-house, you followed Alex’s advice and paid her a $2500 retainer, most of which is already spent. Alex continues to advise you that your case is a good one. Alex cannot be at the mediation today but insists you call her before making any agreement if you are inclined to settle the dispute. Her phone number is 1-SEE-PRO-FESSOR. To connect with her, you should ask the mediator for a break and go back to your assignment breakroom. You can request by private chat message that the professor joins you. You do not think you are likely to settle and are encouraged that the EEOC believes there is something to your claim by the fact that it has convened the mediation. Lisa – VP Accounting: Confidential Information After several meetings, you began to feel that Bob was using you to gain information that would help him attribute any problems with joint projects to your team. You are concerned because you had been candid with Bob about certain members of your team he would be working with, and afterward became aware of information that suggested Bob might use that information to your detriment and that of your team. You thought that you and Bob needed to meet at least one more time, privately, to air this issue. You had tried repeatedly to get some of Bob’s time, but he was evasive. This only added to your concern that perhaps you had shared too much. You have heard that Bob used this tactic at his last job to undermine high-performing women. You wonder whether Bob is being similarly dismissive of you simply because you too are a woman. Journal of Human Resources Education 73 Vol. 17, No. 1/2, Winter/Spring 2023 Further, you have observed that Bob does not seem to offer the women on his team the same opportunities to shine as he does the men. You had raised this issue with Vic, the Senior VP, to whom you and Bob report. You also thought Vic should know about some quality control and safety issues you stumbled onto while doing an internal review of an engineering project of which Bob is in charge, but have not had a chance to share that information yet. You are genuinely concerned about customer safety if ABC releases the product prematurely. You need to get time with Vic about this and heard that Vic will be attending today’s mediation. You learned only last week that Bob has accused you of sexual harassment. You are still trying to get your head around that information. You are genuinely astonished and angry that he made such a report. You have agreed, reluctantly, to participate in the mediation, but question whether Bob can be trusted or can tell the truth in this proceeding or anywhere. There is simply no way you will “pay” to resolve these issues. In fact, you have consulted with, but have not retained, a lawyer who believes you have a good claim against Bob for the damage he has done to your reputation. Harper – Company Representative and HR Manager: Confidential Information You are attending today’s mediation as ABC Company’s representative and are expected to report back to the president about it. The president is concerned that the company will suffer if this matter proceeds to litigation, but is loath to pay a new employee any money for making such a specious claim. Nonetheless, if there are no alternatives, you have $1000 at your disposal to use to settle Bob’s claims against Lisa and ABC—but only if the claims go away once and for all, never to resurface. In your mind, the claims against ABC and Lisa are a package deal. You went out on a limb and recommended to the president that ABC not be represented by counsel at the mediation because you thought chances for resolution were better if Alex (Bob’s lawyer) was not present. You are not a lawyer yourself. If ABC was to have a lawyer at the proceeding, you knew Alex would be there too. Alex is well known in the HR community as being very aggressive, and you suspect she is being so here. You want a chance to reason with Bob without his lawyer being present. Vic – Executive VP (Supervisor of Bob and Lisa): Confidential Information You are the Executive VP to whom both Bob and Lisa report. You need them both to be at their best because their work is critical to a big product launch. You are shocked that this matter has gotten this far without either Lisa or Bob talking to you. Frankly, you believe Bob’s claim is laughable. You simply do not know why two such talented people just cannot get along. You are annoyed that you must waste valuable time at this mediation and would rather do anything than attend. You are engaged in a search for a new VP of Engineering and that is your priority. Interviews with candidates start next week and you have work to do to prepare for them. You are hoping you might use the time at the mediation to get some work done remotely; after all, it is not your fight. You know Lisa fairly well; after all, you hired and promoted her. However, you are also responsible for bringing Bob on board. If he moves forward with his “claim,” you will take the Journal of Human Resources Education 74 Vol. 17, No. 1/2, Winter/Spring 2023 heat for a very bad hire, and life in general will be miserable for you having to supervise them both. Max and Morgan – EEOC Mediators: Confidential Information You are a mediator who works for the EEOC. It is your job to bring the parties together to mediate their dispute. You know only what Bob has reported in the charge he filed with your agency, which was vague and alleged few facts. You must stress to the parties that the mediation proceeding is strictly confidential and that their participation is voluntary. You’ll want them to acknowledge that in writing before you commence. Your goal is to see if the parties can work out a resolution to Bob’s charge and avoid litigation, without the necessity of a lengthy EEOC investigation or further legal proceedings. Should you manage to facilitate a resolution, you should ask the parties to prepare an agreement, which memorializes the terms, and have the parties sign the agreement. You will begin the mediation by conducting a session in which all parties are present before engaging in your shuttle diplomacy. You may group the participants in any way you think prudent for individual sessions. After speaking with any group, make sure you give them “homework” or a serious issue to think through before going to speak with another group so that there is little downtime and you can keep things moving along. If you are working with a co-mediator, figure out how to divide up the work, and be sure to stay on the same page at all times. Sam – Mediation Supervisor: Confidential Information You have spent your career as a successful mediator. Carefully observe the proceedings, making notes on what occurs and how you might have handled things differently. You will be providing feedback to the mediators about their techniques and effectiveness (or lack thereof) in order to provide comments after the session. Clarence – EEOC Chief: Confidential Information You have spent your career as a successful mediator and are now in charge of the entire operation. Carefully observe the proceedings, making notes on what occurs and how you might have handled things differently. Take notes on the techniques employed by the mediators as well as their individual styles. You should observe some of each mediation. You will be providing feedback to the mediators, comparing and contrasting their techniques and effectiveness after the session. Ryan – Reporter: Confidential Information You have been offered the lead of a lifetime. The EEOC has agreed to let you shadow the mediation and write a story about the process. You have been asked to sign a confidentiality requirement. You may write about the mediation but may not disclose identifying information about the involved parties. Journal of Human Resources Education 75 Vol. 17, No. 1/2, Winter/Spring 2023 Appendix D Sample Agreements Confidentiality Mediation confidentiality agreement file name: MEDIATOR: 1. 2. 3. (n.d.). Retrieved September 18, 2022, from https://www.uww-adr.com/zupload/zgraph-content/uploads/pdfs/confid1.pdf Settlement Sample alternative dispute resolution forms. US EEOC. (n.d.). Retrieved September 18, 2022, from https://www.eeoc.gov/federal-sector/sample-alternative-dispute-resolution-forms Appendix E Optional Assignments Prior to the Mediation Begin by reading all materials in this module including the “Drinks After Work” Mediation Common Facts and Cast of Participants who may appear as part of the mediation. Write a 3-5 page paper considering the following points and questions. First, become familiar with the form and function of the Mediation Confidentiality and Mediation Settlement Agreements. What is the function of each? Conduct internet research if necessary to answer those questions. Be prepared to work with these documents in the upcoming mediation. Second, think about the mediation process and its purpose from the perspective of the mediators as well as each of the parties. What should each participant (Mediators, Lisa, Bob, Vic, and Harper) do to prepare for the mediation? Consider preparation that is unique to their respective roles as well as general preparation. What is a good outcome of the mediation from each person’s perspective? Third, based on what we have learned about conflict resolution, negotiation, and mediation, what advice do you have for the mediators? For the parties? Explain and apply at least ten course concepts that the mediators or parties should be mindful of in approaching this mediation. After the Mediation Write a 2-3-page reflection paper, explaining: 1) What you learned. Journal of Human Resources Education 76 Vol. 17, No. 1/2, Winter/Spring 2023 2) What you and others did well that aided movement toward agreement. 3) What you and others might have done differently to move toward agreement. 4) How you might coach yourself and others to improve performance. Keep in mind all we have learned about dispute resolution and related communications. This part of your reflection should include a least five (5) specific page references to theory or skills found in the text. Appendix F Restructuring the Exercise for Online Learning Online approaches are not ideal for large classes, but they can work. The pandemic challenged me to translate the exercise for use on Zoom for a class of 30 students that the university moved to a synchronous online format. To accomplish this, I used only the six essential roles (i.e., Lisa, Bob, Harper, Vic, Max, and Morgan) and assigned each group to a designated breakout room. Each group discussed their role and strategy for the mediation. I assigned students in the two mediator roles to a combined breakout room. In some cases, a single mediator facilitated, and at other times co-mediators facilitated discussions. Students changed their name on Zoom to the name of their role followed by their actual name (e.g., Lisa/Amy Smith). This made it easy for the instructor to assign persons with the same role to a particular breakout room. Likening the process to improvisational comedy, we explained to students that their attention throughout the exercise would be key. At any time, I could say “Cut” and direct a new participant to assume the role from that point forward. Sometimes the action immediately continued, and at other times we sent the participants back into their role groups to review the discussion and strategize a plan for the next phase. The main mediation took place in the principal Zoom gathering space. Only those playing a role at any time had their camera on so that Zoom would aggregate one spot on screen for each role. If at any time a subset of participants desired a small group caucus, they would use a breakout room, keeping the largest group in the principal Zoom gathering place. The online learning experience for students was comparable to that of the physical classroom. An unexpected complication that arose was student use of the chat feature to coach each other. Inventive students decided to use the private chat to “whisper in the ear” of others in their role group. This proved to be a distractor for the student playing the role, who needed to listen actively and make decisions in the moment using their best judgment. For this reason, students should be prohibited from using the private chat feature; chat should only be used to communicate with the instructor. Another complication that occurred at times was that more assertive students were reluctant to let others take over the role when I said “Cut” and persisted in holding the floor. In such an instance, instructor intervention is required. Journal of Human Resources Education 77 Vol. 17, No. 1/2, Winter/Spring 2023 © 2023. This work is published under https://creativecommons.org/licenses/by-nc-nd/4.0/(the “License”). Notwithstanding the ProQuest Terms and Conditions, you may use this content in accordance with the terms of the License.

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