Tips for workplace mediation
August 6, 2019 5:22 AM   Subscribe

As a result of a formal complaint against my boss, the university we work for has asked us to undergo a mediation process. This is with an external, licensed mediator (whose professional background is as a psychologist). It's tomorrow. I'm freaking out. For anyone who has done something like this, are there any tips you can give me?

The complaint was for sexual harassment and other inappropriate behaviours, mismanagement, etc. It was made by a group of about five of us, and a number of other women were involved as witnesses/interviewed by legal counsel etc. Everyone has resigned now except me, the boss, and one other woman, who was only tangentially involved.

The university officially found that he was not at any fault. But despite that finding, they have put in place a number of sanctions/changes that suggest they do agree there was a problem, and that I am mostly happy with, although I think they should have gone further (like, I don't think he should continue to be my boss, for example), and I also think they should have been formally recorded as responses to this situation rather than just things that they just happened to change coincidentally.

That's all just background, though. The important thing for this question is that tomorrow he and I have a three hour mediation session with an official, external, 3rd party mediator. This was at his request. He told HR his goal for the mediation was to explain himself. They told him that was an inappropriate goal, and the mediator, who I met with one-on-one already confirmed she will shut down any attempt by him to re-litigate the complaints.

I do not have a goal for this session. I told her bluntly that I did not think mediation would achieve anything, and that it was not really appropriate in this situation, but I'm willing to give it a good-faith go if the university needs us to do it. We did already have a mediation session a couple of years ago, with all of the women who have since resigned, as well, but it was an internal mediator, with very little training, and it went very very badly. (Everyone cried, everyone got defensive. The boss didn't hear what anyone was saying, and did not change any behaviour going forward, except for retaliating against the women who were most outspoken in the mediation session.)

The mediator suggested a goal of the session might be for us to come to an agreement about what is and isn't appropriate behaviour going forward, which I think is maybe not really my job (assuming it's a matter of my explaining to him how to appropriately behave around women). But again, I kind of have to at least show willing.

So I'm looking for advice from anyone who has participated in something like this before. Advice on all kinds of things: behaviour in the meeting; preparation; self-care; feedback on my current plan, etc.

My current plan:
-Try to walk a line between saying as little as possible and not appearing unwilling to engage.
-Be polite but unemotional.
-Refuse to discuss the specifics of the formal complaint, in particular anything pertaining to the others who have since left.
-Use "I" statements if I do need to discuss how particular behaviours affect me.
-Take detailed notes.
-As advised by the mediator I have made a list for myself of the specific good behaviours my boss has exhibited lately (while he's been being very careful since the complaint) that DO work well for me, so I can bring them up as examples of how I would like us to continue to work together going forward.
-I'm taking the rest of the day afterwards off work and have arranged to meet a good friend afterwards at the pub.

What I am not looking for:
- advice to quit my job. (I know that is something I can do, and maybe I still will)
- legal advice. (I've consulted with lawyers, my colleagues have consulted with lawyers, and we also have union advice).

Please do not assume American cultural norms or organisational structures. This is not in the USA. I don't want to give too much identifying detail, but it is at a university in a primarily English-speaking country.

I have created a throwaway email address at in case anyone would rather reply privately.
posted by anonymous to Work & Money (25 answers total) 3 users marked this as a favorite
Mediators are supposed to figure out each side's needs and interests, not just the (possibly superficial) ones people put on the table but also the ones they're not stating explicitly, and try to encourage a resolution where each side's needs are met.

So I'd say come prepared to talk about your needs in the workplace and what you want to get out of the process. Be prepared for him to be invited to talk about his. If you feel the mediator is working with a different goal, or just in general, feel free to have them explain what they're working towards and how they intend to get there. If you feel the mediator is showing favoritism or is unequipped to understand the conflict in the first place, insist on stopping the mediation and doing a new one with someone experienced in the type of issue at hand.

In terms of your needs, I think you're completely right that it's not your job to educate him on what is and isn't appropriate in the workplace. Figure out what you see as his responsibilities, what you see as the university or department's responsibilities, and what you need not to be responsible for or involved with. Also think about whether there's any emotional component here for you that you'd like to have addressed. Even though the mediation is happening at his request, you can treat it as though it is supposed to benefit you - because that's what mediation is supposed to be used for.
posted by trig at 6:19 AM on August 6, 2019

Not the same thing exactly, but an academic behaved badly towards me, and I told my boss without making a formal complaint to protect my livelihood. I was asked to talk to a mediator. I was very compassionate about the abusive academic - I could see why she behaved badly coming from a minority group that was often oppressed, but I was on her side, and she yelled at me repeatedly.

The surprise was that after I talked to the mediator for 2 hours, she was legally bound to tell the academic what I said, which I wasn't expecting.

So know in advance what the process is, and make your decisions about what you can or should say.
posted by b33j at 6:27 AM on August 6, 2019 [3 favorites]

This might not be the advice you are looking for, but if it were me, I would not go to this session.

There is an inherently unequal power relationship between you and your boss. Sitting in a mediation session and acting as if you two are on equal footing strikes me as an unsafe situation, because you don't really have any recourse if the boss behaves badly in the mediation or uses stuff you say against you later.

I don't know what the consequences could be for you if you don't attend. But I would not attend.
posted by mai at 6:35 AM on August 6, 2019 [40 favorites]

Not attending may not be possible, but I would be very much on the defensive. That is, I would be prepped with a number of non-committal things to say, and I would try to say as little as possible of substance -- I would be afraid that something I said would be later turned into either (1) an admission of wrongdoing on my own part, or (2) an agreement that the boss did nothing wrong.

Given that you don't have anything you want from this mediation, it's literally no-win for you -- there's no outcome (that you can see now) that leaves you better off. At that point, your strategy is to play to not lose: you don't want any substantive outcome of the mediation at all (unless something emerges that does convincingly sound good for you), and you don't want to say anything that can be quoted against you.

Last thing -- don't assume the mediator is objective, evenhanded, or on your side. She might be, but you don't have any way of knowing that.
posted by LizardBreath at 6:53 AM on August 6, 2019 [39 favorites]

(Just so you know where I'm coming from, I haven't been through this myself, but I am a litigator who's worked on employment cases. I don't have specific relevant experiences, but this process is making the hair on the back of my neck bristle, and I'd be very cautious about it.)
posted by LizardBreath at 7:03 AM on August 6, 2019 [17 favorites]

My background here is working for a law firm that acted as mediators, and my experience with the lawyers who did the mediation. I've never actually been in mediation, but having seen what I did I'd begin by assuming the mediator is on the side of management and will seek to achieve a mediated agreement that is detrimental to you and beneficial to management. Mediators are not neutral, they are on the side of whoever is paying for the mediation.

At the firm I worked for I actually, no exaggeration, once overheard a couple of lawyers talking about how the individual in mediation with the company paying my firm thought they might find for him. They were joking about it and laughing at the idea.

If you don't go in with a specific objective you'll be steamrolled. If you go in intending to be quiet and participate as little as possible you'll be steamrolled. The mediator is almost certainly intending to do as much to the benefit of the university as possible anyway, but if you go in unprepared to advocate strongly for yourself that likelihood becomes a certainty.

One reason why big organizations like mediation is that it forces people like you to advocate for themselves while they get to have a professional on their side. You must go in ready to push for your own agenda. Because even if the mediator isn't corrupt and fully on side with the university, they still won't do much for you if you don't ask them to.

If the best you think you can get are some actual written guidelines for sexual harassment, make that your goal even if educating a pig is not something you want to do.
posted by sotonohito at 8:11 AM on August 6, 2019 [12 favorites]

A general tip: say [whatever your strategy dictates in that moment] and then force yourself not to fill the ensuing silence with additional words. It’s a common tactic in adversarial interviews (and that’s what this is) to let there be silence because so many people find it uncomfortable and go on to provide additional information, explanation, defense, etc. that ultimately hurts them in part because, having already delivered the planned response, they go into freestyle mode. Women, especially, are socialized to smooth over awkward silences. Don’t do it.
posted by carmicha at 8:48 AM on August 6, 2019 [34 favorites]

Oh my god, I am so sorry they're doing this to you. I would go in with the only thing I have to say being that it is untenable to have to report to your harasser and is not something that normal HR procedure would even allow because of the liability, nevermind your actual comfort. Maybe ask what your recourse will be if the harassment continues, or retaliation. And ask to receive documentation confirming the answer. Then stop talking.

Absolutely let three hours of silence ensue, if that's what has to happen.

Mediation is 100% an abuse tactic being used by the university to punish you and then claim they took all appropriate follow-up actions so there's no way you can sue.
posted by Lyn Never at 8:56 AM on August 6, 2019 [23 favorites]

I've been pondering this, trying to come up with a strategy that will work for you given that this mediation session is happening and you are going. And honestly, what I would do is audio record the session. I'm not a lawyer but it seems perfectly legal to do this in the UK. I don't think I would tell either of the other parties, either. I'd just want the tape for my own records and my own peace of mind.
posted by DarlingBri at 9:21 AM on August 6, 2019 [2 favorites]

The mediator suggested a goal of the session might be for us to come to an agreement about what is and isn't appropriate behaviour going forward, which I think is maybe not really my job (assuming it's a matter of my explaining to him how to appropriately behave around women).

I agree that it's not your job to teach him how to behave around women, but I also agree that if you don't go into this session with a goal, you'll be steamrolled and frustrated. An objective will help you focus, and stay...well, objective. The problem to solve isn't that he upset you and needs to learn how not to upset you, the problem is that he behaved inappropriately, period.

Perhaps a goal could be to set forth how he will conduct his job as your supervisor moving forward. I mean, literally how he will conduct his job. Define the purpose of his job, and define the purpose of your job -- I expect some opportunity for mediation about expectations will arise right there. Then outline what actions he and you will take when either of you have a disagreement or conflict with the other's work.
posted by desuetude at 9:37 AM on August 6, 2019 [2 favorites]

This sound irritating! I would, I think, push back on the "He is still going to be your boss" aspect. Like, I understand that it's a decision that has been made, but I'd point out, repeatedly, that it's not something you are okay with and are only agreeing to it so that you don't lose your job. So anything you say, discuss, or ask for can be prefaced with "While I think the best solution is to not have you in a supervisory role with me anymore, I do agree that...."

Be prepared to have a cold stare in the wings in case he tries to boundary cross and re-litigate. In these cases, since you know it's a boundary cross, it's appropriate for you to refuse to engage and eithe rstate it out with him or speak directly to the mediator "That statement was not within the boundaries of this discussion and I will not be replying to it"

Focus on the fact that all you want to do is go back to work and not be harassed, that is your goal, that is your plan moving forward. Fuck this guy, you have a job to do. Again, sorry you have to deal with this at all.
posted by jessamyn at 9:46 AM on August 6, 2019 [9 favorites]

Re: DarlingBri's suggestion: I would be very surprised if the mediator permitted you to record the mediation. Confidentiality is usually a Very Big Deal in mediation. That means that nothing that is said by any party (including, amazingly enough, the mediator him- or herself) during the mediation can be used in any legal proceeding.
posted by Transl3y at 11:16 AM on August 6, 2019 [2 favorites]

are you allowed a union rep to attend with you? if so do that. if not see if you can consult with a union rep in advance. My union rep would go with me and speak for me if I were in this position.
posted by biggreenplant at 11:34 AM on August 6, 2019 [13 favorites]

If you want to have something more to ask for you might say that as you don't speak for all women that he works with or will work with, you are concerned that he needs support in understanding what is and is not appropriate (in general) and so you would like to see him get some training on this issue. Certainly there are on-line trainings that overcome the lack of local options. I don't see the training as likely to make much difference but I can see some benefits in asking - strengthens your position that you don't speak for all women and also your concerns that it is not your place to teach him what to do. Plus, if gives you something reasonable to ask for that would be nice but not essential.
posted by metahawk at 12:57 PM on August 6, 2019

I know you said don’t assume it’s the US, but in the US at least, you can ask to have an advocate or lawyer counseling you during the mediation. Since this mediation is paid for by the uni, and they’re already doing things you Do Not Like, you might consider exercising that right (if you have it) to even the playing field.
posted by executive_dysfuncti0n at 2:28 PM on August 6, 2019 [1 favorite]

So, he has done a mediation session before over the same issue (and it apparently went badly) and now, after five women have resigned AGAIN over his sexual harassment, the University is forcing you to do another session? You don’t need a mediator, you need to quit and band together in a class action with the other women.

This is now a known issue that the university and the perpetrator is refusing to act on. If nothing changed last time, what makes you think anything will change now? I wouldn’t go or if I was forced to, turn up with a lawyer. And yes, I get that’s not how it’s supposed to work but nothing about this sounds good.
posted by Jubey at 2:28 PM on August 6, 2019 [2 favorites]

When I have done mediations that aren’t about money, the best ones happened with “shuttle diplomacy” where we were in different rooms and the mediator went back and forth. Maybe you could ask for that.
posted by kerf at 4:03 PM on August 6, 2019

Sorry, I just saw that you don’t want advice to quit so apologies there. If this fellow has sexually harassed you, it’s entirely inappropriate to put you in a room with your assailant again and you shouldn’t be forced to teach him how not to sexually harass you! It’s unbelievable.

If the mediator and the university have acknowledged that he’s acted inappropriately (enough that you’re being asked to tell him how to behave) how can they also claim that he’s not at fault in the same breath? Either way if this is the point of the meeting, this is not something you can or should be asked to fix.

I’d tell the psych that they’re putting you in a position to be retraumatized again and targeted unfairly by your boss, which has happened before. It also leaves them wide open to litigation (which I would be pursuing wholeheartedly). If I had to do it, I’d take the above advice and refuse to be in the same room as him and that tell them that this is the environment that your boss has created.
posted by Jubey at 5:12 PM on August 6, 2019 [1 favorite]

Can you take a support person with you (union rep, lawyer, or just a trusted colleague)? The person will probably have to sign a confidentiality agreement, and may not be able to intervene in the proceedings, but they can be there for moral support and can take notes so that you remember what was said.

Your planned approach sounds like a good one, and I also agree with the advice to avoid filling any awkward silences. Also, don't let them pressure you to accept any agreement on the spot, tell them that you need a couple of days to think about anything they propose.
posted by rpfields at 7:11 PM on August 6, 2019 [1 favorite]

The idea of a mediation where you don’t have any idea going into it what the agenda is, or what there is to mediate, seems so lopsided and absurd that I’ve got nothing for the substance. But I do have a practical tip that helps me in meetings like these.

My suggestion is, bring a small object to hold in your hand, like a rubber ball or pocket elephant. It is there to remind you to keep your mouth shut and let the other side talk.
posted by bigbigdog at 9:23 PM on August 6, 2019 [1 favorite]

I have mediated for 20 years. I have taught mediation at Harvard. This is a really inappropriate context for a mediation. I'd like to echo the wisdom here about not participating, either by not being present or by being present and speaking little. I am sorry you are being asked to go through this experience.
posted by equipoise at 10:41 PM on August 6, 2019 [7 favorites]

"My goal is to not have (boss) as my supervisor due to his history of harrassment."

Then when they suggest ways for him to "behave appropriately" (whatever that means, since they think he did nothing wrong) you can just say

"That does not align with my goal."
posted by WeekendJen at 3:39 AM on August 7, 2019 [1 favorite]

One question you likely want answered is how will your post-mediation experience be different (better) than those who left after the supervisor’s last attempt to reduce active conflict. Sure, you are literally a different person, but what’s the plan?

Once that is developed, given the track record, suggest who else you might report to while everyone recovers on a temporary basis. Ask after what looked like retaliation, saying you are concerned that it might be a pattern.
posted by childofTethys at 3:49 AM on August 7, 2019

If no one is participating in the mediation who has the authority to assign you to someone else, let the mediator know who might be consulted to make that happen, especially if there is no agreement/resolution. Yes, you will likely listen through the supervisor’s plan to resolve differences, and there is a chance that there might be a different offer there, such as a transfer. Realistically, if you want to have a new supervisor, and don’t want to even attempt a repair for this work relationship, either you would have the leverage of a potential lawsuit to motivate change (and consulting with a lawyer would help you know this), or you would have a plan for applying for other jobs within or outside your current organization.
posted by childofTethys at 4:11 AM on August 7, 2019

Mod note: Update from the OP:
I did the mediation and it sucked in all the ways you can probably imagine, but I found many of the answers very helpful, in particular lizardbreath's, desuetude's, metahawk's and bigbigdog's. I want to thank everyone for their input, though. Even just getting so many responses (even the ones not of practical use in the specifics of my situation) made me feel really supported and more prepared.

There were three things in the mediation, though, that kind of blindsided me and would have been helpful for me to expect and prepare myself for ahead of time, and so I'd like to mention them in case they are useful to anyone who finds this thread in the future and is preparing for a similar situation:

1. Being prepared that he might make a big deal about HIS emotional pain and how hard the complaints process was for him to go through, the nightmares he has and the effect on his work, and how he is so disappointed in me and sad we can't be friends etc. It sounds stupid, but I found that really emotionally hard to hear, even though (and kind of because) it made me really angry that he put all that on the table at all. I just sat in silence for this and then said that was stuff we just really couldn't and shouldn't discuss. But I wish I'd been prepared to hear it.

2. Being prepared for him to bring up and want to discuss feminism in general and the #metoo movement in particular, from a kind of intellectual perspective (we're at a university, so maybe this wouldn't be so likely to happen in other kinds of workplaces). (For what it's worth, I just didn't respond on that at all, but I wish I'd had something pithy to say instead of sitting like a stunned mullet while he ruminated about it all).

3. In what was supposed to be the last 5 minutes of the session, when the mediator was wrapping everything up, and when things had been unemotional, professional and mostly okay for the past half hour or so, suddenly things got weird and emotional/hostile again and he did a lot of boundary crossing/pushing, brought up stuff that was outside the scope of the mediation, etc. I think because he felt like it was his last chance to get some stuff out, and because I had lowered my defences a bit, thinking everything was finished, I didn't respond as carefully as I should have. For anyone else entering this kind of mediation, I'd recommend being prepared for a last burst of problematic stuff when you think you are basically done, and keeping your focus on your planned strategy right up to the moment you walk out of the room.
posted by LobsterMitten (staff) at 8:21 PM on August 7, 2019 [11 favorites]

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