Investigations And The Resolution Of Workplace Disputes

Friday, October 1, 2004 - 00:00

Editor: Would each of you provide our readers with something of your background and experience?

Shaw: I started my career as a litigator in a large Wall Street law firm. I began mediating in the late 1970s when I set up mediation programs in New York City's Family Courts for cases involving "Persons In Need of Supervision." In the mid-1990s Carol and I founded our firm as a boutique employment mediation and arbitration firm. We eventually merged with colleagues in Washington, DC to form ADR Associates, LLC, which joined JAMS this past January.

Wittenberg: I come to ADR from the academic side. I was a member of the extension faculty of Cornell's School of Industrial and Labor Relations for many years, teaching, among other subjects, conflict resolution. I began to mediate and arbitrate labor-management disputes in 1980, while still on the Cornell faculty. It was a natural transition for me to become a full-time neutral in 1988. Since the formation of our firm in 1995, I have focused more of my practice on the resolution of employment disputes. I have always viewed ADR as the preferred method of resolving disputes through processes that are both more expeditious and economical than litigation.

Shaw: Another one of the attractive things about ADR is the way in which it enables parties to deal with issues early. This is helpful in the employment area particularly. Interpersonal issues left unattended can ripen into full-scale discrimination claims. Mediation offers the means for early, amicable resolution.

Editor: What were the factors that entered into your decision to join JAMS?

Shaw: JAMS is a national organization with 23 Resolution Centers all around the country. Joining JAMS gives us the ability to provide services to our clients on a national basis. In addition, we have expanded our network of colleagues and have the opportunity to participate in a very strong professional development program.

Editor: And your particular focus on the uses to which ADR can be put in resolving workplace disputes?

Wittenberg: As Margaret mentioned, early intervention is important in workplace disputes and can take a number of forms. In addition to mediation, we provide facilitation services to assist organizations to manage group conflict and to engage in constructive problem-solving.

Shaw: The role of ADR in workplace disputes has grown dramatically over the past ten years. It can be of benefit at just about any stage in the life cycle of a dispute. Clients call us in when a workplace problem is just emerging, to try to facilitate early resolution between individuals or work groups. We are also called in to mediate after a case has been filed, sometimes before much, if any, discovery has occurred, and sometimes just before trial. We are also asked to do impartial investigations after an employee has filed a complaint internally with human resources.

Editor: What are the skills that an outside neutral brings to the workplace arena? How do these differ from those of in-house counsel? Or outside counsel?

Wittenberg: Particularly for investigations, I believe that our skills have been developed over time, during the course of a professional career in mediation and arbitration. Patience and empathy are two of the principal skills or virtues. Effective outside neutrals have an ability to make people feel comfortable in situations that are often very stressful. As a result, they are able to draw people out and enable them to better describe their understanding of the situation. People who believe they are being heard and listened to, for example, are more willing to give the investigator as full a story as possible. The way in which trust is built in these situations is crucial to the integrity of an investigation. A neutral who has the ability to establish trust is going to be extremely successful in getting both complainants and the persons against whom they have made the complaint to cooperate in the investigation.

We originally became involved in workplace investigations because our mediation clients - who had developed a certain comfort level and trust with respect to the services we had provided - came to us and asked us to investigate claims of discrimination. Our practice in this area then evolved, primarily through client referrals.

Editor: How do neutral investigations differ from those conducted internally? Or by outside counsel?

Shaw: Calling in an outside neutral in these situations lends credibility to the investigation process. The expectation of impartiality moves the process in a positive direction. Witnesses and people in whom those directly involved have confided tend to come forward with information, which is not always the case when in-house or outside counsel are involved. When high-level executives are involved, an outside neutral also has the ability to probe for facts in a way that inside counsel - perhaps someone lower down in the chain of command - may find difficult. The same may be true for outside counsel if the person being questioned may have something to say about the retention of counsel's firm. Another difference is that an outside neutral may be in a position to participate in resolution efforts. In appropriate cases, we may put an investigation on hold, or share a preliminary draft of our investigation report with the parties and then engage in informal dispute resolution, something that in-house or outside counsel, with a more partisan role to play, are unlikely to be able to do.

Wittenberg: We just completed an investigation dealing with an allegation of discrimination by one high level executive against another. Neither inside counsel nor outside counsel was anxious to conduct the investigation because of their experience of working with both executives and their ongoing relationship, both of which they thought might influence the investigation. Bringing in a neutral outside investigator was regarded as the way to ensure a fair and impartial procedure.

Similarly, because we do so much employment work, we know many plaintiff's counsel. That often paves the way for the complainant's cooperation during the course of an investigation. This is particularly important where the complainant has left the corporation's employ and there is no affirmative obligation to cooperate in the investigation.

Editor: What about conflicts of interest as between the employer and the person charged with misconduct?

Wittenberg: It is not unusual for the person charged with misconduct to have interests that differ from those of the corporation. When that person is represented, we conduct our investigation in the presence of private counsel. So long as the attorney does not participate in the process, he/she is welcome to attend the interview and, indeed, there are times when counsel is helpful to the process.

Shaw: Our investigation agreement provides that we will not voluntarily testify in any subsequent proceedings and that we will destroy all of our underlying notes. These provisions reinforce our neutrality, which, as we have said, we think is a real benefit we bring to the process.

Editor: And the perception of a risk of retaliation? Why is an outside neutral helpful in this situation?

Wittenberg: We cannot guarantee anonymity and confidentiality to those who come forward, but we can, and do, guarantee fairness and impartiality. Additionally, although we cannot protect individuals against retaliation for their participation, we can communicate their concerns to the corporation. That is almost always sufficient to ensure that retaliation does not take place.

Editor: And the resources that an experienced outside neutral can bring to the resolution of this kind of complaint?

Shaw: Once the investigation has been completed, the parties involved may want to try to resolve the issues informally. In that event, we can help each of them identify their underlying concerns, find ways of articulating those concerns productively in a later joint meeting, and work towards finding a way to meet those concerns they all can live with. Initiating this process, and guiding the participants through it, is what an experienced neutral can bring to the table in these types of situations.

Wittenberg: I was engaged in what began as a routine investigation of a sexual harassment complaint against the head of a small nonprofit organization. During the course of the investigation - which unearthed a number of problems that had not been part of the original undertaking - the person against whom the complaint had been brought left the organization. The governing board and staff asked me to stay on to work with them on the resolution of some of the broader problems that had surfaced during the investigation. This type of experience is evidence of the trust that can be established between the neutral investigator and the organization and staff, and it validates the integrity and impartiality that the outside neutral brings to the process.

Editor: How do you see ADR's presence in workplace disputes evolving over the next few years?

Shaw: There will continue to be increasing acceptance and use of ADR in the employment area. More and more employers are instituting internal dispute resolution programs to catch problems at an early stage. This not only saves the costs and disruptions of litigation but also contributes to employee morale and a more productive workplace. Mandatory arbitration as a last step in some of these programs continues to be controversial, as will what I understand is beginning to be used as an alternative, court proceedings with jury waivers. Again, this points to the benefits of intervening early to resolve disputes before this stage. With JAMS' resources and national reach we believe we will be able to provide these kinds of services in an effective and timely manner.

Margaret Shaw and Carol Wittenberg are neutrals with JAMS, The Resolution Experts. Based in New York, they may be reached at mshaw@jamsadr.com, cwittenberg@jamsadr.com or at (212) 751-2700.