Saturday, December 18, 2004

Transformative Mediation and the United States Coast Guard: Strengthening Equal Opportunity and the Complaint Discrimination Process

A paper written for “Mediation and Negotiation Strategies” (Leadership 9620).

For a number of years, federal government agencies have sought to diversify their workforces under the assumption that a diversified workforce makes “business sense.” Diverse organizations can harness that diversity and use differences as a strength, not a weakness. Organizations which embrace diversity and use diversity as a driver have better results than organizations which are homogeneous or organizations which see diversity among the workforce as a divider. However, even organizations seeking diversity sometimes find that all employees have not bought in to the idea of a diverse workforce. Sometimes managers and employees act in a discriminatory manner. In this paper, we will examine the Coast Guard’s equal opportunity program and ways for the Coast Guard to improve it’s discrimination complaint process.

The Coast Guard’s Equal Opportunity Program

The United States Coast Guard, one of the foundational agencies of the recently formed Department of Homeland Security, has more than 6000 full-time civilian employees (Sharn, 2003) who work alongside and support more than 40,000 uniformed Coast Guard military personnel (U.S. Coast Guard, 2004). These civilian employees play key roles in prosecuting Coast Guard missions around the United States and around the world. Civilians are a key component of “Team Coast Guard” – the human resources of the Coast Guard made up of active duty military personnel, reservists, civilian employees, and volunteer Auxiliarists. The Coast Guard, as an organization, is a strong advocate of diversity and equal opportunity in all it’s workforce components.
The Coast Guard mandates that all members of Team Coast Guard – regular and reserve military, civilian, non-appropriated fund, and Auxiliary – are to be treated fairly, with respect, dignity, and compassion. Each should be provided the opportunity to work, develop, and achieve his or her full potential, thereby enhancing unit cohesiveness, military readiness, and mission accomplishment. The Coast Guard prohibits any form of discrimination that violates law or policy in any action affecting Coast Guard personnel, those seeking employment with the Coast Guard, or those receiving benefits from any Coast Guard-sponsored programs. (U.S. Coast Guard, 1999, p. 1-2.)

The Equal Opportunity Program Manual goes on to specify the Coast Guard must prevent “discrimination in the workforce, so that the only roadblocks to success exist in a person’s mind.” (U.S. Coast Guard, p. 1-2) Allegations of discrimination are made, however, and some of those allegations are found to have merit. The Coast Guard is not immune to discrimination. The Agency does, however, have discrimination complaint programs which detail “policies and procedures for identifying, investigating, and resolving allegations of discrimination in the Coast Guard.” (U.S. Coast Guard, p. 5-3)

The discrimination complaint program is administered by a team composed of unit commanding officers or commanders – senior, organizational leaders who are required to “exercise personal leadership in promoting equal opportunity and equal treatment of Coast Guard personnel and their dependents within their commands and local communities.” (U.S. Coast Guard, 1999, p. 2-5) In addition, these leaders are directed to “take prompt, positive action to eliminate discrimination within their commands if it does occur. (U.S. Coast Guard, p. 2-5) Senior leaders ally themselves with full-time and collateral duty Equal Opportunity personnel including Civil Rights Officers (who manage the Equal Opportunity Program), Equal Opportunity Specialists (civilian employees dedicated full-time to the Equal Opportunity Program and Civil Rights operations and missions), and Collateral Duty Equal Employment Opportunity Counselors (civilian employees who spend some of their duty time working with aggrieved persons who allege discrimination. (U.S. Coast Guard, pp. 2-18 – 2-24) These four individuals form the basic Equal Opportunity Program team.

The Equal Opportunity Program Manual designates a fifth member of this team, Alternative Dispute Resolution Mediators. The Mediator is
a neutral party available to assist aggrieved personnel or applicants for employment and the Coast Guard in reaching a settlement of their difference in an allegation of discrimination. The Mediator takes an active role in defining the issues, encouraging communication, and offering options for an early resolution. (U.S. Coast Guard, 1999, p. 2-34)
Coast Guard employees certified, and designated, as Alternative Dispute Resolution Mediators become part of the federal government’s Sharing Neutrals Program. (U.S. Coast Guard, p. 2-35)

The alternative dispute resolution process is fairly new to the Coast Guard. The use of alternative dispute resolution in Equal Opportunity cases was implemented in 1999. (U.S. Coast Guard, 1999, p. 2) Even now, the use of alternative dispute resolution and mediators is fairly limited in scope, and the Equal Opportunity Program Managers continue to discuss ways to increase the use of alternative dispute resolution. According to J. Whack (personal communication, September 2004) discussions include changing the Equal Employment Opportunity process to mandate the use of a mediator in all cases before an aggrieved person is permitted to file a formal Equal Employment Opportunity complaint.

Under the current process, civilian employees, or applicants for Coast Guard civilian jobs, who believe they have been discriminated against have 45 days from the discriminatory event to speak with an Equal Employment Opportunity Counselor. The EEO Counselor – without evaluating the claim – counsels the aggrieved person on the Equal Employment Opportunity process, conducts a limited inquiry and fact finding into the matter, and attempts to bring about resolution. The Equal Employment Opportunity Counselor has 30 days to complete this process; if resolution has not been reached the Counselor provides the aggrieved person a letter providing them the right to file a formal complaint. (U.S. Coast Guard, 1999, p. 2-24) Without progressing through the informal process – the administrative remedy – the aggrieved person may not file a formal Equal Employment Opportunity complaint. The Counselor serves as the entry to the entire process.

Mediation and Discrimination Complaint Resolution

Mediation is a growing practice in discrimination complaint resolution. Goldstein (1995, p. 28) indicates the number of employment discrimination cases filed in the federal courts rose more than 2000 percent from 1975 to 1995. Alternative dispute resolution is seen as a viable alternative to the courtroom for discrimination cases. According to Camp (2004, p. 66), “Mediation enables disputing parties to jointly craft a sensible remedy…. A fundamental tenet of negotiating an agreement is that each party to that agreement must agree to its terms.” Camp notes, “Successful mediation requires the assent of all parties…. The parties may craft an agreement that provides a better solution than a verdict or award ever could.” (p. 66) One of the benefits of mediation is that money isn’t the be-all and end-all: “Parties to a dispute should not miss the opportunity afforded by mediation to craft non-monetary ways to resolve the dispute.” (Camp, p. 66) Epstein (2003, p. 40) notes “mediation is a facilitative process” juxtaposed with litigation which is “inherently adversarial, requiring the two parties to face off in court.”

The Power of Transformative Mediation

Bush and Folger (1994, p. 12) delineate two approaches to mediation. “The first approach, a problem-solving approach, emphasizes mediation’s capacity for finding solutions and generating mutually acceptable settlements.” This approach offers the focus sought by Camp, Epstein, and others. Bush and Folger, however, favor the second approach, a transformative approach to mediation, which emphasizes mediation’s capacity for fostering empowerment and recognition. (p. 12) They lay out a strong and comprehensive case for the transformative approach, even while acknowledging it is not the favored, or in vogue, mediation approach for many mediators. They suggest “the mediation process contains within it a unique potential for transforming people – engendering moral growth – by helping them wrestle with difficult circumstances and bridge human differences, in the very midst of conflict.” (Bush and Folger, p. 2) For Bush and Folger, the transformative approach creates two powerful states: empowerment and recognition. Empowerment is “the restoration to individuals a sense of their own value and strength and their own capacity to handle life’s problems.” (p. 2) Recognition is the ability for people to acknowledge and empathize “for the situations and problems of others. (Bush and Folger, p. 2) Rather than asking the mediator to face a “barrage of factual and emotional information” which needs to be “sorted and organized into negotiable issues”, a mediator practicing the transformative approach comes “ready to witness an intense interaction and exchange between the parties … filled with myriad opportunities for empowerment and recognition.” (Bush and Folger, p. 102-103)

What of the bottom line, however? We seek mediation to resolve disputes, not prompt personal growth. Bush and Folger (1994, p. 279) state
Since empowerment and recognition will probably produce desired settlements wherever they are really possible, mediation practice can attain both solutions and transformation – not by striving directly for both but by following the transformative approach alone. Practicing transformation mediation is the best way to meet both goals, because it will lead not only to transformation but to settlement as well, whenever a settlement is genuinely acceptable to both sides.
What Bush and Folger suggest is that through the use of the transformative model, problems will be solved; through the use of the problem-solving model, however, participants will not grow. By using the transformative model, with its mental roadmap of personal growth, participants are given the chance to grow through empowerment and recognition, and through this growth, resolution is possible. When the mediator starts with the transformative approach as a mindset, all things are possible; when the mediator starts with the problem solving mindset, the best that can happen is the particular problem will be solved; there’s been no movement on underlying issues.

This notion of transformation has taken root in a number of venues. In a recent article in the Harvard Business Review, Zadek (2004) outlines an organizational model of corporate responsibility. He provides a continuum of “five discernable stages in how (organizations) handle corporate responsibility. (Zadek, p. 125) In short, for Zadek, organizational growth comes from a transformation of organizational beliefs, practices, and actions. At its highest form, not only does the organization integrate responsibility in “core business strategies” but promotes broad industry and community participation in organizational responsibility. (Zadek, p. 127)

Transformative mediation falls in direct alignment with Zadek’s organizational approach. Creating an institutionally mature, civil organization, by “shifting the relationships between disputants so that their experience of each other changes before they return to the workplace … is a primary goal in each (transformative) mediation, as that supports the overall organizational goal, which is to actually change the workplace environment and culture.” (Begler, 2001, p. 67)

Transformative Mediation in a Large Bureaucracy

The U.S. Postal Service’s mediation program for equal employment opportunity disputes, known as REDRESS, utilizes Bush and Folger’s transformative model and sets a goal to “afford the maximum participant self-determination at the case level.” (Bingham and Pitts, 2002, p. 137) Empirical studies by the Indiana Conflict Resolution Institute at Indiana University show the transformative model of mediation as implemented by the Postal Service resulted in “a statistically significant drop in formal EEO complaints of more than 17 percent annually” for a 3-year period. (Bingham and Pitts, p. 143) The authors of the study go on to assert a bottom-line organizational win: “Organizations can reduce transaction costs by resolving conflict at an earlier stage in the administrative process using appropriately designed mediation programs.” (Bingham and Pitts, p. 144)

In constructing the Postal Service mediation program, two variables were examined to determine the impact on the satisfaction levels of participants and settlement rates for the cases. The variables were “comparing inside and outside neutral mediators” and “examining the role that different kinds of representatives play in mediation.” (Bingham and Pitts, 2002, p. 136) Inside or in-house neutrals are mediators employed by the organization; in this case, they were U.S. Postal Service employees. Outside neutrals are mediators who are not employees of the organization; in the Postal Service’s case, they were professional, contracted mediators. Results showed higher satisfaction for all participants using the outside mediators. (Bingham and Pitts, p. 138) One possible reason for this is participants might have an easier time believing the non-employee mediator “to be truly neutral.” (Bingham and Pitts, p. 138) Based on the data, “the Postal Service abandoned the use of internal neutrals in favor of independent, external neutrals.” (Anonymous, 2002, p. 6)

The second variable which Bingham and Pitts examined was the impact different types of representation that participants brought to the mediation sessions. In the Postal Service’s program, participants – both the aggrieved person and the person representing the agency – could bring representation into the mediation sessions. Representatives could have been an attorney, union official, coworker, or some other person such as a friend or family member. (Bingham and Pitts, 2002, p. 140) Having representation present – no matter what sort of representation – increased the settlement rate and the duration of the mediation sessions. Union or professional association representatives had the greatest positive impact on settlement rates; attorney representatives had the least. (Bingham and Pitts, p. 140-141) Bingham and Pitts (p. 141) suggest this discrepancy may be in large measure because many attorneys are protective of their clients and are, by nature, adversarial. Simon (2004, p. 113) supports this assumption, suggesting, “lawyers’ typical efforts to mediate between clients … rely less on advocacy and more on information control.” He goes on to suggest “dependence on lawyers often impedes responsible or human behavior.” (p. 113) However, Bingham and Pitts note representation of any sort in mediation efforts was better in terms of settlement rates than the participants flying solo; they state, “these results are important because they indicate that various kinds of representatives are associated with differences in the dynamics of the mediation process…. Mediation outcome, party participation, and participant satisfaction with fairness are all related to the presence and type of representative the parties use.” (p. 142)

An apparent key element in the success of the Postal Service’s program is the fact the agency has a unified plan and program that they piloted in one area and then rolled across the country involving the entire service. Their deployment of the discrimination complaint mediation process was not a hodgepodge approach, but a proactive approach embracing a specific model of mediation – the transformative approach. Nothing in the literature reviewed indicated the Postal Service considered using mediation from the problem solving perspective

Underlying Costs Addressed by Transformative Mediation

A fundamental cornerstone for this rationale is likely a set of beliefs held by the designers of the Postal Service’s program. The Coast Guard has identified six “costs” for an ineffective equal opportunity program. These costs speak to the fundamental concerns serving as foundational for the transformative approach to mediation:
1. Processing formal discrimination and harassment complaints significantly drains resources from the Coast Guard budget.
2. Distrust, fear, anger, and other negative feelings pervade an environment that condones discrimination, harassment, and a lack of respect for diversity. Accomplishments and productivity inevitably decline along with morale.
3. Discrimination, harassment, and a lack of respect for diversity fracture the organization. With teamwork impaired, safety is compromised along with effectiveness and ability to accomplish Coast Guard operational missions.
4. If the Coast Guard loses its ability to perform Congressionally mandated tasks, service to the American public is hampered.
5. Internal discrimination and harassment undermine trust in the organization, among Coast Guard members and the public it serves.
6. Failing to comply with Equal Opportunity and Civil Rights mandates in its dealings with external entities damages the Coast Guard’s reputation. (U. S. Coast Guard, 1999, p. 1-4)
Interestingly, the transformative approach, with its emphasis on empowerment and recognition, addresses a number of these costs. The transformative approach deals directly with distrust, fear, anger, and other negative feelings. The transformative approach asks both parties – the aggrieved person and the alleged discriminator – to put aside distrust and fear and anger, to learn about themselves and the other person, and to see both participants as a part of some greater community. Discrimination and harassment and a lack of respect fracture the organization; the transformative approach works to cement the organization with “good mud” which bonds and holds tightly. The problem solving approach to mediation merely looks for a solution to the current situation; it does not deal with the fundamental costs. Transformative mediation can, as Begler (2001, p. 60) notes, “help to stabilize the workplace.”

Recommendations for the Coast Guard

While the Coast Guard has officially implemented a mediation component for discrimination complaint processing, in practice it is nothing more than words on paper. Mediation is seldom used. In the Postal Service’s program, the aggrieved person decides whether or not to use the mediation program; “mediation is voluntary for the EEO complainant, but required for the supervisor respondent, who represents the USPS as an organization entity.” (Bingham and Pitts, 2002, p. 136) In the Coast Guard, senior leaders have been known to refuse to proceed with mediation, even when requested by the aggrieved person. Mediation, voluntary for the aggrieved person but mandatory for the agency representative, helps provide the aggrieved person some sense of control. Begler (2001, p. 75) notes conflict is often “embedded with many assumptions, feelings of isolation, lack of understanding about others’ experiences, insufficient transmission of information, and limited organizational support and investigation.” Providing the option of mediation begins to address these for the aggrieved person. The Coast Guard should move to mediation voluntary for the aggrieved person, but mandatory for the person acting in the agency’s stead.

While some people have suggested, and continue to suggest, mediation should be mandatory, the research does not support this method. Mandatory mediation disempowers the aggrieved person by forcing them to take a certain path for the discriminatory complaint process. Mandatory mediation locks the participants into a format they may not be comfortable with and encourages a lack of trust.

The Coast Guard’s current mediation program does not specify the approach or model for mediation. All the documentation, including a “Sample Format for Mediation and Settlement Agreement” and a “Mediation Completion Form” focus on problem solving. (U.S. Coast Guard, 1999, 5-71 thru 5-72) It does not appear as if, at the present time, the Coast Guard’s mediation focus is on transformation, even though the costs outlined would clearly lead to the transformative approach. While the duties and responsibilities for mediators working within the Coast Guard are spelled out, and the desired knowledge, skills, and abilities are specified, and the specific training and certification standards are listed, there is no statement of model, approach, or process to use in mediation. (U.S. Coast Guard, 2-34 thru 2-35) Using the programs goals and stated costs (U.S. Coast Guard, 1-2 thru 1-5) as a starting point, the transformative approach appears to be a better mesh than the problem-solving model. Begler (2001, p. 59) notes, “When left unrecognized and unresolved, conflicts inside organizations frequently develop into major disputes that range from ongoing personal backbiting to multilevel turmoil.” Using the transformative approach “supports the overall organizational goal, which is to actually change the workplace environment and culture.” (Begler, p. 67) To meet the stated goals and overcome the identified costs, the Coast Guard ought to adopt the transformative approach and ensure all mediators are using the transformative roadmap as they work with participants in conflict.

Whether to use internal mediators, outside mediators, or a combination of both is a critical decision. As noted earlier, the Postal Service has moved to using only external mediators. A key to using external mediators for the Postal Service is that all of them use the transformative approach to mediation and all mediators working in the Postal Service program have “gone through a special mediation training sponsored by the USPS.” (Begler, 2001, p. 61) This, coupled with the agency’s relationship with the University of Indiana and the continuous gathering of empirical data, leave little to chance. The Postal Service has taken a systematic approach to their mediation program. This is not to say that external mediators are the best approach; Bingham and Pitts (2002, p. 138-139) write,
These results indicate that the outside model may provide a more effective mediation program overall than the inside model in circumstances where the program does not give participants a choice between models…. They were never offered a choice between inside and outside neutral mediation, as they might be in an ombudsperson program or integrated conflict management system. In these latter cases results might differ.
Since the Coast Guard participates in the Sharing Neutrals program managed by the Department of Health and Human Services (2004), the Coast Guard could establish a mediation program which provides the aggrieved person the choice between a inside, or Coast Guard employee, mediator and an outside mediator, an employee from another federal agency. Using the Sharing Neutrals program will help keep costs down; the use of outside, contracted mediators would raise the required costs for the program. All mediators practicing in the Coast Guard should be trained in, and use, the transformative approach.

One of the strengths with the Postal Service’s program is the collection and use of evaluative, empirical data. It is the use of data which supports assertions by Begler (2001, p. 61) and others that the Postal Service’s mediation program is a “success.” Success for the Postal Service is not anecdotal, but rather based on measurable data. The Coast Guard has asserted certain costs for ineffective equal opportunity programs including drains on budget, loss of productivity, reduction of operational effectiveness, and employee morale. (U.S. Coast Guard, 1999, p. 1-4) The Postal Service used measures of effectiveness which included participant satisfaction with the mediation process, the mediator, and the outcome (Bingham and Pitts, 2002, p. 138); additional measures of effectiveness included settlement rates (Bingham and Pitts, p. 138). Additional measures include time spend in mediation sessions and the number of formal Equal Employment Opportunity discrimination complaint filings following the administrative remedy of informal counseling and mediation. A combination of measures, based on desired outcomes and identified critical success factors, will provide information for review as the Coast Guard works to create a more effective discrimination complaint process.

Vision for the Future

The Coast Guard’s outcomes for Civil Rights are clear and include a “workforce that values diversity” and a “workforce free of discrimination and harassment.” (U.S. Coast Guard, 1999, p. 1-5) The use of transformative mediation following allegations of discrimination will begin to provide positive change; transformative mediation “creates the possibility for disputants to integrate strength of self and compassion toward others – a goal that neither problem solving mediation … nor other institutionalized forms of dispute resolution even seeks.” (Bush and Folger, 1994, p. 284) For the Coast Guard change its culture, transformative mediation provides an avenue which, while not quick is thorough, impacting employees, supervisors, managers, and leaders.

References

Anonymous. (2001, November). Conference rewards outstanding federal ADR programs. Dispute Resolution Journal, 56(4), 6.

Begler, A. L. (2001, Autumn). Partnering with mediators: A collaboration that works. Employment Relations Today, 28(3), 59-77.

Bingham, L. B, & Pitts, D. W. (2002, April). Highlights of mediation at work: Studies of the national REDRESS evaluation project. Negotiation Journal, 18(2), 135-146.

Bush, R. A. B. and Folger, J. P. (1994). Promise of Mediation: Responding to conflict through empowerment and recognition. San Francisco: Jossey-Bass Publishers.

Camp, A. (2004, September). Mediation’s advantage: Money isn’t everything. The CPA Journal, 74(9), 66-67.

Epstein, D. G. (2003, October) Mediation, not litigation: Alternative dispute resolution methods offer cost-effective, nonadversarial strategies for resolving workplace conflict. Nursing Management, 34(10), 40-42.

Goldstein, J. I. (1995, February). Alternatives to high-cost litigation. Cornell Hotel and Restaurant Administration Quarterly, 36(1), 28-33.

Sharn, L. (2003, August 1). Senate panel boosts Coast Guard acquisition effort. Government Executive online. Retrieved December 15, 2004, from http://www.govexec.com/dailyfed/0803/080103cdam1.htm.

Simon, W. H. (2004, December). The confidentiality fetish: The problem with attorney-client privilege. The Atlantic, 294(5), 113-116.

U. S. Coast Guard. (1999). Coast Guard Equal Opportunity Program Manual (COMDTINST M5350.4). Washington, DC: Author.

U.S. Coast Guard (2004, June 24). Civilian career opportunities. Retrieved December 15, 2004, from http://www.uscg.mil/hq/cgpc/cpm/jobs/vacancy.htm.

U.S. Department of Health and Human Services (2004, July 16). Sharing Neutrals: An Interagency Collaborative Effort in Support of ADR. Retrieved December 18, 2004 from http://www.os.hhs.gov/dab/sn/.

Zadek, S. (2004, December). The path to corporate responsibility. Harvard Business Review, 82(12), 125-132.

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