"Going Postal:" a New Definition and Model for
Employment ADR
By Josefina M. Rendón & Judy K. Dougherty
(Note: This article was originally published in the Jan/Feb 2000 issue of The Houston Lawyer and is reprinted in The Texas Mediator with their permission.)
Prompt Service with Justice Delayed?
The United States Postal Service, with almost 900,000 employees, is one of the largest federal employers. The management of this huge bureaucracy must reconcile the demands of powerful unions, federal procedures, and increasing pressures to meet the expectations of Congress to maintain a competitive edge and hinder any justification of privatization.
To add to these pressures, the Postal Service (USPS) had received some bad press in the early 1990's regarding alleged work-related acts of violence, even though the Postal Service was actually at the national average or below for workplace violence.1 However, perception can override reality, and “going postal” became a widely misused term to describe an explosion of violence due to unresolved conflict in the workplace. This “perception of violence” led Congress to direct an investigation into postal labor relations using the General Accounting Office (GAO).
In 1993, the GAO found USPS relations to be acrimonious and confrontational, the product of “an autocratic management style, that included an adversarial union and employees.2 This confrontational style may have resulted in one of every twelve postal union members filing a grievance or complaint.3 Resolving those disputes cost the agency over $200 million a year.4
The Postal Service was also unable to handle equal employment opportunity complaints in a timely fashion, leading to a charge that “justice delayed was justice denied”.5 While the time-consuming, lengthy, adversarial process of exercising the grievance process continued, the prompt delivery of mail remained the inviolable priority of the Postal Service. The inflexibility of this requirement seemed incompatible with providing time for communication about “people problems" in employment disputes.
Employment Law or People Problems?
An experienced employment lawyer knows that emotions, or "people problems," play an important part in employment lawsuits. Frequently, a lawsuit starts as a result of a negative employee evaluation or miscommunication of job standards and expectations. It could also be the result of an unexpected termination, or a promotion expected by one employee but received by another. Often, employment lawsuits are filed because an employee feels he or she has been treated unfairly. Such an employee will want redress and seek legal recourse. Equal Employment Opportunity (EEO) complaints are often filed because they provide the only access to redress.6 The employee may then try to get a "square peg" complaint to fit the "round hole" of the law.7 Some of these lawsuits will be considered frivolous and dismissed by summary judgment. Others will prevail.
A good employment lawyer understands that, though often lacking legal sufficiency, these complaints have merit at a personal and interpersonal level. The unfair or disrespectful treatment of an employee, though not legally sufficient for judicial redress, can affect employee morale and performance. This, in turn, can profoundly and systemically affect the employer's efficiency, competitive edge and stature, not to mention the legal costs of defending lawsuits (frivolous or not) and the increasingly obvious danger of violence or sabotage from a disgruntled employee.
The personal and interpersonal dynamics in employment disputes have made mediation a logical and perhaps indispensable method of resolving these disputes.
Employment Mediation in Texas
Mediation has gradually brought about a problem-solving approach to employment dispute resolution that, in contrast with the primarily adversarial approach to disputes found in litigation, concentrates on settlements and, at times, mutual satisfaction of the parties.
Problem-solving mediation has been criticized, however, because of the tendency of mediators to steer the parties both toward settlement and its specific terms, often displacing and obscuring the parties' problems and needs.8 A failure to address the parties' own agendas will result in less effective agreements in the long run.9 Furthermore, the focus on settlement or problem solving has resulted in a preoccupation with quantity rather than quality of settlements.10 This is partly because quality is hard to measure while numbers are not.
How should success in mediation be measured? Most practicing lawyers would call a successful mediation one where a cause of action is settled with a mutually satisfactory agreement. But settlement is not the only or best way to measure success. In fact a mediation can be successful even in the absence of settlement if it results in quality outcomes such as: the reduction of violence or hostility, prevention of future disputes, cost and time savings, the extent of compliance with the agreed terms, and party satisfaction with process as well as outcome.11
In addition, many mediations have collateral effects. Examples include those moments when people reach new insights about themselves or others, or moments when the parties gain a new sense of self-worth or of the other person's problems.12 These collateral effects of better understanding, and at times reconciliation, affect the parties at a more personal, relational level than the actual settlement agreement.
Although, in practice, the relational aspects have been minimized, Texas law takes into account both the settlement-oriented and the relational goals of mediation. Our statute defines mediation as "a forum in which an impartial person, the mediator, facilitates communication between the parties to promote reconciliation, settlement, or understanding among them".13
When they occur, collateral effects such as understanding and reconciliation mentioned in Texas law increase the quality of the mediation, transcending the benefits of the agreement itself and resulting in better or longer-standing settlements. The realization that these collateral effects can make the mediation even more successful has engendered a new movement that focuses on the attainment of certain personal and relational goals, a movement where the "collateral" effects of mediation are in fact the central goal. This next step is transformative mediation.
The Promise of Mediation
Authors R.A.B. Bush & J. P. Folger argue that a successful mediation is one where the parties end up, not necessarily better off, but better as individuals.14 People are better, say the authors, when they achieve moral growth and maturity. Both conflict and mediation provide the opportunity to achieve this growth. Personal growth comes when people strengthen their "selves" and when they reach beyond themselves to relate to others. This is in short the promise of mediation.
Transformative Mediation has two dimensions, empowerment and recognition. Empowerment is defined as "realizing and strengthening one's inherent capacity for dealing with difficulties of all kinds by engaging in conscious, deliberate reflection, choice and action."15 This empowerment is attained when the parties "experience a strengthened awareness of their own self-worth and their own ability to deal with whatever difficulties they face, regardless of external constraints."16 Recognition, the second dimension of transformative mediation, means: "reaching beyond the self to relate to others. " It is attained when, after acquiring some sense of empowerment, the parties "experience an expanded willingness to acknowledge and be responsive to other parties' situations and common human qualities."17
Those who conclude that terms such as transformative mediation, empowerment and recognition are just therapeutic psycho-babble with no place in employment litigation should think again. Transformative mediation is part of a movement that is being embraced not only by mediators and therapists but by management experts, educators, political theorists, public health professionals and social theorists as a practical response to our society's concerns.18 It is part of a larger trend away from the dominant western individualist worldview that values individual autonomy and fulfillment, and toward a relational view that values the integration of individual strengths with concern for others.19
Transformative mediation has been embraced by the United States Postal Services as a tool and its hope for handling its own employment related troubles.
The USPS REDRESS Program
Against a backdrop of the public’s perception that workplace violence has grown out of control and in the face of the difficulty in changing management in a huge bureaucracy, a mediation program was initiated at the U.S. Postal Service (USPS) as a part of a multimillion dollar settlement in a statewide law suit in Florida. The Postal Mediation program, which began in 1994, is now called “REDRESS,” which stands for "Resolve Employee Disputes Reach Equitable Solutions Swiftly". The program was designed to provide fast and effective resolution of workplace disputes through mediation.
As in most courts and other implementers of mediation programs, there was an initial perception that a directive, problem-solving style of mediation that used evaluative techniques and relied on caucus would be most effective in settlement rates.
Consequently, the initial pilot program used that type of mediation model. This initial program was followed by a period of experimentation with different models of mediation between 1996 and 1998 across 27 cities.
The Indiana Conflict Resolution Institute, the independent evaluator of the project, compared different models of mediation in terms of the level of satisfaction and perceptions of the participants.20 Internal mediation (the use of mediators within USPS) and external mediation (the use of independent mediators), and directive/problem-solving and transformative models were evaluated. This comparison indicated that participants in external mediation under the transformative model were generally more satisfied than participants in the internal mediation model. External mediation participants using the transformative model had higher satisfaction rates with the process, the mediator, and the outcome.21
The studies found that transformative mediation created a positive “upstream effect: that improved workplace relationships by providing a better opportunity to be heard, and strengthening the ability of supervisors to handle work place conflicts. In addition, using the more typical criteria of success, external mediation participants using the transformative model reported higher settlement rate than those using the internal and more directive mediation models. As a result of this research, the Postal Service now requires that mediators utilize the transformative style. The Service trains experienced mediators, some of whom are non-attorneys, in transformative methods.
It is believed that the implementation of transformative mediation is a significant cause for the national drop in the number of EEO counselings, informal complaints and formal, investigated complaints. These statistics also show the effectiveness and positive return on investment from the REDRESS program. USPS now has nationwide implementation of this EEO mediation program.22 Texas was one of the last states in the nationwide implementation of the program, beginning in 1999.
Implications for Attorneys
When mediation was first introduced in Texas, most attorneys were reluctant to consider it. Attorneys felt it might compromise the client’s rights and perhaps eventually lessen the need for legal representation. Now, mediation is embraced by attorneys as an integral part of their practice.
The positive results reported by the extensive independent research on the Postal Service's use of transformative mediation require a greater focus the long term benefits of party autonomy in decision-making.23 It may be useful to determine how empowerment and recognition can become a pragmatic addition to dispute resolution.
This change might seem potentially threatening to attorneys as advocates and mediators. However, the verified settlement rates in excess of 70% using this method, the higher satisfaction of attorney mediators and parties utilizing this method, and the continuation of a legal representative’s significant role in the process should provide comfort to attorneys. The parties continue to have representation in the transformative model, even though the focus may be more on a joint partnership. The attorneys are still able to aid in increasing the range of creative options and implementation of the parties’ resolution.
The term “Going postal” now appears to have taken on a totally new and innovative meaning of transformation through empowerment and recognition. The Postal Service has shown that one of the largest employers in the United States is willing to risk being a pioneer and show that big business and employment lawyers can succeed with a more personal, employee-centered focus.
Josefina Muñiz Rendón has been a mediator since 1993 for agencies including the U. S. Postal Service, Equal Employment Opportunity Commission, Texas Education Agency and the Department of Justice. A 1976 graduate of the University of Houston Law Center, she was the former Judge of Municipal Court #5 and former Vice-chair of Houston's Civil Service Commission. Judge Rendón also is the editor of The Texas Mediator and is on the editorial boards of The Houston Lawyer and the Texas Bar Journal. She is presently an Associate Municipal Judge and a mediator in private practice.
Judy Kurth Dougherty has been one of Texas' pioneer mediators since 1980 for agencies including the U.S. Postal Service, the American Arbitration Association employment panel , and the U.S Southern District. A 1978 law graduate and former adjunct professor of the University of Houston Law Center, and an MSW from the University of Texas. Dougherty is former President / founder of Family Mediation Network of Greater Houston. She is also a former Director of the Texas Association of Family Mediators, the Association of Attorney Mediators and the Houston Bar Association ADR Committee and Section.
[1] Young, Michael, Postal Violence Debated: Officials Dispute Service’s Reputation After Deaths, Dallas Morning News (May 4, 1998).
2 Verdict on Postal Service Management Style: Autocratic (St. Louis Post-Dispatch) 1994, Washington Post (Oct. 30, 1994) .
3 Id..
4 Id.
5 Interview with P. A. Syal, EEO/ADR Specialist, United States Postal Service, 1002 Washington St., Houston, Texas (Oct. 25, 1999).
6 Evans, Frank & Sloan, Shadow, Selected Topics on Employment & Labor Law: Resolving Employment Disputes Through ADR processes; 37 S. Tex. L. Rev. 745 (June 1996).
7 Landrum M. A. Mediation May Help Solve Disputes in the Workplace// Traditional way of dealing with job conflict addresses only certain situations, Minnesota Star Tribune (Apr. 1, 1996) at 3D.
8 Bush, Robert A. & Folger, Joseph P. The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition, (Hereinafter cited as Bush & Folger) San Francisco, Jossey-Bass, (1994) at 75.
9 Id. at 75; Fleisher, Janice M., Directing and Administering a Mediation Program: The Transformative Approach, 13 Mediation Q. 295 (Summer1996) at 298-299; Pope, Sally Galong, Inviting Fortuitous Events in Mediation: The Role of Empowerment and Recognition 13 Mediation Q. 287 (Summer1996).
10 Sander, Frank E.A. The Obsession with Settlement Rates, Negotiation J. (Oct. 95) 329.
11Id.
12Bush & Folger, supra, note 7.
13Tex. Civ. Rem. & Prac. Code ann. sec. 154.023 (Vernon Supp. 1999).
14 Bush & Folger, supra, note 7 at 29.
15Id. at 81.
16Id. at 84.
17Id. at 85.
18Id. at 99; Franz, Patricia, Habits of a Highly Effective Transformative Mediation Program, Ohio State J. Disp. Res. Vol.13:3 1998.p.1039. Also see: Covey, Stephen, The 7 Habits of Highly Effective People: Powerful Lessons in Personal Change, New York Simon Shuster, 1989.
Freiberg, Kevin & Freiberg, Jackie, Nuts!: Southwest Airlines' Crazy Recipe for Business and Personal Success Austin, Bard Press 1996); Osborne, D. & Gaebler T. Reinventing Government Redding, Mass, Addison-Wesley 1992; Rosen, R. D. & Gaebler, L. The Healthy Company: Eight Strategies to Develop Productivity and Profits, Los Angeles. Tatcher 1992.
19Franz, note 16, supra at 1039.
20The USPS started using exit surveys with its first pilot program in the Florida Panhandle to determine the program effectiveness. Bingham, Lisa, The National Redress Evaluation Project Annual UpDate: Is Mediation Transforming Workplace Conflict at the United States Postal Service?, Unpublished paper, Indiana University, 1999.
21Id.
22Id.
23See note 15, supra.