Month: November 2022

ADR and workplace Conflict: A US Perspective with David .A. Hoffman

Published by Chinwe Egbunike-Umegbolu

We should make ADR a mandatory subject for teaching lawyers- we should put it on the bar examination, so before you become a lawyer, you will have to study ADR. When you think about the popular media, what impression do people have of lawyers and conflict resolution? They see programmes about courtrooms and trials but do not see shows about mediators. There was a show in the US called ‘fairly legal’ that ran for three seasons and then died; it is a show all about mediators, but it seems that the popular chase finds conflict more entertaining than peace-making– David .A. Hoffman, Excerpts from Expert Views on ADR (EVA) Podcast-Episode 24 

Abstract

I was honoured to welcome David Hoffman, a renowned mediator, arbitrator, and attorney. David teaches courses on collaborative law and mediation at Harvard Law School. He also serves on the faculty of the Program on Negotiation’s Harvard Negotiation Institute, where he teaches the Advanced Mediation Workshop “Mediating Complex Disputes.” David is the founder of Boston Law Collaborative LLC (BLC); he has handled more than a thousand commercial, family, employment, construction, personal injury, insurance, and other business cases.

 BLC was the 2009 recipient of the American Bar Association’s annual Lawyer as Problem Solver Award and the 2010 recipient of the International Institute for Conflict Prevention and Resolution’s annual Law Firm Award for Excellence in ADR.   In 2004, Hoffman was chosen as one of the “Top 100 Lawyers” in Massachusetts in Boston magazine’s Super Lawyers Directory and has been consistently named a New England Super Lawyer since the listing began. He has also won several awards for his work as a mediator, including the Lifetime Achievement Award from the American College of Civil Trial Mediators and the highest award given by the American Bar Association’s Section of Dispute Resolution, the D’ Alemberte-Raven Award.    
His research interests are Mediation, negotiation, and dispute resolution. He also has several publications to his name. It is imperative to mention that since 2008, David has taught the Mediation course previously taught by Prof Frank Sander (Founder of the Multi-Door Court House).  Education: A.B., Princeton University M.A., Cornell University J.D. and Harvard Law School.
In this episode, we analysed the following questions:  
1) Whether or not employees or workers in the US are aware of ADR options regarding disputes or conflicts that might arise between them and their employers?
2) Why is ADR more prevalent or popular in the more complex societies (US) than in the less complex societies?
3) To what extent are employees in the US encouraged to use ADR to settle discrimination or bullying and harassment in the workplace?
4) What is the way forward for mass advocacy or awareness of the benefits of utilising ADR in settling disputes or conflicts in the workplace?
5) How about the Court-Connected ADR  (Multi-Door Courthouse-MDC) in Nigeria?
6) What is your advice for people pursuing a career in ADR?
7) Can you tell me more about the ADR programme you do or carry out at Harvard Law School and Boston Law Collaborative LLC?
 
*Boston Law Collaborative, LLC < https://blc.law/about-blc/>

Keywords: ADR, Workplace conflict, Access to Justice, Employment relations, Human resource management, US; India.

 

Introduction

1) Whether or not employees or workers in the US are aware of ADR options regarding disputes or conflicts that might arise between them and their employers? 
There is a fairly low level of awareness in the US except in a couple of situations. However, a portion of the US workforce is unionised; and a fairly high percentage of the employees realise that if they have a dispute with their employer, there is a procedure in the collective bargaining agreement- processing grievances and ultimately going to Arbitration if the grievances are not resolved. Nevertheless, this is less than Ten (10) per cent of the US workplace; unfortunately, it could have been much better if there was a high level of unionisation.  Laws in the United States have been interpreted in ways that make unionisation efforts hard to succeed.
However, a second segment of the US Workforce is not unionised and is not subject to collective bargaining and is not unionised. But where there are written employment agreements that the employees have to sign, those employment agreements often have provisions that require mediation in the event of a dispute. If mediation does not resolve the dispute, it goes to private arbitration.
He further stated that the workers or employees who signed those contracts have an awareness but need a deeper understanding of the differences between mediation and arbitration and what will be involved if they use those provisions.  And for people in the United States who are in workplaces without such agreements, either individuals-he does not think there is a high-level awareness if they have a dispute with their boss, they could suggest mediation.

2) Why is ADR more prevalent or popular in the more complex societies (US) than in the less complex societies? 

David offered three theories- First of all, in pre-industrial societies in some parties of the world; China is the leading example. Mediation was widely used at the village level and in many other parts of the world. They are sociologists and anthropologists, and historians who discovered that mediation has a long history. We in the post-industrial modernised world were unaware of it.

Often these mediations involved using the village elder, a religious leader, or a person in authority.  The methods were not necessarily adjudication; the process used was to restore harmony by agreement. There is a lot more ADR out there in an informal way than in the less industrialised parts of the world.  Additionally, the development of a modern system that is Mediation, Arbitration, Early Neutral Evaluation, Conciliation etc., has been because the judicial system is not working well.

For example, the backlog of India’s public court is enormous, yet the development of dispute resolution has yet to be robust. Thus, why mediation has not become more popular in developing (less) societies has to do with cultural norms. It may be adjudication-which is considered the proper way to do it.

Nevertheless, in the US, UK and EU Countries, there has been a tendency on the side of the business to look at litigation as way too expensive and time-consuming in business terms. Another reason why mediation is popular, there is a strong incentive coming from the progressive parts of their society that believe that negotiation and people with different views sitting down to talk together is a good thing for society. Another motivation is that for businesses, it makes a lot of sense to pay lawyers a substantial amount of money for a small dispute.

For example, David represented a company that owned a building (warehouse), and it had a big roof -a six-acre roof, and the roof began to fail in the Tenth (10th) year. His client building on it wanted to replace the roof because it is still under warranty. The manufacturer of the roofing system said, ‘no’, they are not going to replace the old roof because my client has already got nine (9) years out of it; we will give you 1/10th of the value, which led to conflict. So he litigated that case for nine (9) years, and the whole total legal fee (for both sides) came to $600,000, and the roof itself only cost  $300,000. Thus, $600,000 was spent on lawyers to figure out who would pay for $ 300,000.

3) To what extent are employees in the US encouraged to use ADR to settle discrimination, bullying, and harassment in the workplace? 

There is a well-established system of Adjudication for discrimination cases in the United States and other parts of the world. In the US, both the national federal agency and the state anti-discriminatory agency have mediation programmes, and the cases are filed if it is found to have enough merits in the allegations to warrant processing the claim.

Generally speaking, the participants are offered the option of mediation, and occasionally they are ordered to at least try mediation. The principle of mediation is voluntariness; people are required to stay in mediation until they have an agreement- it is not a voluntary process. But interestingly, many of our courts and anti-discriminatory agencies have a procedure requiring parties to try mediation at least. It raises an interesting policy question which is -if mediation is confidential, then how did these agencies and courts, for that matter, enforce the obligations to try mediation in good faith because they are not allowed to enquire about what happened in the mediation. Thus, there is an unresolved tension between confidentiality and policies that want to encourage the use of ADR.

4) What is the way forward for mass advocacy or awareness of the benefits of utilising ADR in settling disputes or conflicts in the workplace? 
There are several ways that awareness can be created, so one of them begins with elementary school; the school will benefit not only from having training in negotiation and conflict resolution but also pure mediation programmes.
Many schools in the United States, not the majority, but many, have pure mediation programmes in which students are trained in having to mediate conflicts amongst other students. Second, employers could do a better job of educating their employees about dispute resolution options and implementing policies.
For example, the Boston Law Collaboratives have employment policies that say, ‘if there is a conflict or a dispute, we agree to go mediation, and Boston Law Collaboratives will pay eighty (80%) of the cost and the employee Twenty (20%). Fortunately, Boston Law Collaboratives  never had to use this policy, and the policy also said, ‘if we don’t resolve the conflict in mediation, then one option is Arbitration.’  However, the policy says  ‘that we only go to Arbitration at the option of the employee.’ In other words, as the managing member of the Boston Law Collaborative, I cannot require any employee to go to Arbitration; if they want to go to court, they can go to court.
Finally, we should make ADR a mandatory subject for teaching lawyers- we should put it on the bar examination, so before you become a lawyer, you will have to study ADR. When you think about the popular media, what impression do people have of lawyers and conflict resolution? They see programmes about courtrooms and trials but do not see shows about mediators. There was a show in the US called ‘fairly legal’ that ran for three seasons and then died; it is a show all about mediators, but it seems that the popular chase finds conflict more entertaining than peace-making.
5) How about the Court-Connected ADR  (Multi-Door Courthouse-MDC) in Nigeria- the court refers parties to mediate.
It is wonderful to hear that in Lagos State, there is MDC, the idea that was created by Professor Sander; he was my advisor in Law School and became a friend, but sadly he has passed on. His idea for MDC was that if someone shows up with a conflict, the courthouse serves as a triage centre and sends them off to mediation, arbitration, conciliation etc. or to a village informal dispute resolution system. The MDC is a great idea, and it is not widely adopted; We pointed out that one of the reasons why it has yet to be adopted in all US states, even in Nigeria and many parts of the world, is because of funding.
It is imperative to point out that in the last thirty (30) years or so, we have seen a major retreat from public investment and public institutions; a part of it has been the inflation in the economy, and another reason, from my point of view, is the conservative tendency to the private institution as opposed to public ones. Hence, the idea of giving the court system more money to hire mediators and evaluators is a terrific idea. David hopes the pendulum will swing in the other direction and people will realise that it is a wise use of public funds to reduce the independence on lawyers and trials- to reiterate nine (9) years of litigation over a simple roof case.
6) What is your advice for people pursuing a career in ADR? 
We do not have an established career path in ADR. For instance, if someone wants to become a doctor, an architect, or even a lawyer, the path is that you get some independent schooling and then apply for an entry job, which is true for academics. Nevertheless, we only have a few entry-level jobs in the world of dispute resolution. There are few mediation offices, and they sometimes hire people. We have non-profits and even some profit organisations that hire administrative people; sometimes, they can transition from an administrative role into a dispute resolution role, but that is very hard. However, most of the private mediation and arbitration work in the United States is done by lawyers or retired judges with a certain amount of experience managing those kinds of conflicts.
However, there are some exceptions; for example, in family law, mostly divorce, there are many therapists and couple counsellors who become mediators in the labour management setting. Sometimes, there are experts in labour relations, but they are not lawyers, and they do jobs as arbitrators and mediators in the environmental law area. Many of the mediators are not lawyers but have very substantial expertise in the technical areas of environmental conflict resolution.
7) Can you tell me more about the ADR programme you do or carry out at Harvard Law School and Boston Law Collaborative LLC?

At Harvard Law School, there is a community mediation programme called the Harvard Mediation Programme. It is quite unique because it trains students on how to be mediators and provides community members training. Hence, the panel of mediators at our mediation programme consists of students and people that are not students- it provides services for low-income individuals in the district courts and the small claims courts. So that model of service for people who cannot afford to hire mediators is extremely important, and there are thousands of community mediation programmes all over the United States. Unfortunately, they are not well funded. Most of them get no public funding; hence they have to do fundraising to support these volunteers’ efforts so they have enough money for administrative staff.

David is very proud that Harvard Law School has robust, successful community mediation programmes that serve the public. At Boston Law Collaborative, we created a separate branch called the Boston Law Collaborative Institute. The Institute’s purpose is to provide training and workshops in various areas related to dispute resolution. One of those areas is diversity, equity and inclusion and how to make the world a less prejudiced biased place. We also host workshops on mediation skills, and ‘I recently offered a workshop called Law as a Spiritual Practice. Most people think of Law as anything but a spiritual practice, but the spirit of service is the value I consider spiritual and very important.’

 

Conclusion

The paper analysed the current workplace conflict situation in the US; it also delved into the idea behind the creation of the MDC and why it is not widely adopted in both Jurisdiction – UK and Nigeria. The paper went on to address potential users of ADR on the steps to follow in case of any arising disputes or conflicts in the future. The blogger believes potential users should take on board the pros mentioned herein and opt for ADR, particularly Mediation or Conciliation.

 

Click here to listen to the full version of Episode 24 of Expert Views on ADR (EVA) podcast.