Resolving the Workplace Conflict: Can Veronica Return to Family Co.?
All of the feature articles in the September issue of the Contra Costa Lawyer relate to the fact pattern for this issue. Read it here.
Our story picks up where that saga ended. “Veronica has tried for several weeks to contact Blanch, who has not returned her calls and has instead responded via email with short responses. Veronica’s month of FMLA leave is almost over and she must decide what to do.” Veronica believes that she is ready to return to work, but worries that she will not be safe at Family Co. The domestic violence clinic has told Veronica that she has a right to a safe work environment and that California laws give certain rights to victims of domestic violence. Veronica is already disappointed with Family Co.’s lack of response to her needs, particularly with the lack of support from Blanch, and has asked Family Co. to sit down with her and a neutral to agree on the terms of her return to work. You, an experienced mediator, are the lucky neutral.
Your research reveals that Veronica does, indeed, have workplace rights. California Labor Code sections 230 and 230.1 provide, among other things, that an employee who is a victim of domestic violence may have protected time off to appear in court, to obtain protection, to secure housing, and to engage in safety planning. Section 230 also requires the employer to provide a reasonable accommodation to assure the safety of an employee who is a victim of domestic violence. Employees whose statutory rights are violated may obtain reinstatement, lost wages and benefits, and appropriate equitable relief.
Because Blanch is a Family Co. manager and knew about the assault and escalating threats, Blanch’s failure to initiate reasonable action to assure a safe work environment and her teasing response to Veronica’s need for time off, Family Co. may already have exposure to a variety of claims, including claims for failure to provide a safe work environment, failure to provide a reasonable accommodation as required under the Americans with Disabilities Act and comparable California law, and retaliation for requesting or taking time off protected under the Family and Medical Leave Act, the California Family Rights Act, and Labor Code sections 230 and 230.1. Based upon your preliminary conversations with Veronica, she is more interested in returning to work than in bringing a lawsuit.
Neither Veronica nor Family Co. have sought legal advice. Serving as a mediator where one or both parties do not have counsel can create ethical dilemmas for the mediator. California has not adopted a code of ethics that governs mediators in private settings. However, the best practice is for the mediator to encourage the parties to obtain legal advice before the mediation. Under Rule 3.853 of the California Rules of Court, “A mediator must conduct the mediation in a manner that supports the principles of voluntary participation and self-determination by the parties.” When participants are not represented, it becomes tempting to provide legal advice and opinions throughout the course of the mediation. If Veronica and Family Co. each have their own advisors, you can point out the legal concerns and options, which they can then review with their representatives before making their own decisions.
Talking with Veronica and Family Co. and their representatives before the mediation will significantly increase the likelihood of success. The pre-mediation conversations can assist the parties in thinking about the session as collaborative, determining their own goals, and evaluating creative solutions. Premediation discussions may also demonstrate a need for one or both parties to evaluate solutions before coming together. Are there positions at Family Co. that Veronica could fill in which she would not have to interact with Albert? Does Vendor Co. have a person other than Albert who could service the relationship between Vendor Co. and Family Co.? If not, are there alternative vendors? What physical changes can be made to Family Co.’s facilities or Veronica’s workspace to provide Veronica with greater protections and the ability to feel safe at work? Should Family Co. designate one or two people that Veronica can go to with concerns and, if so, who are they? Do the parties want to start in joint session or private session? Is there an expert who should be consulted before the mediation or brought into the session? Premediation discussions are a great opportunity to get the parties thinking about their desires and possible solutions, including non-traditional solutions.
Once the formal mediation begins, you continue to encourage creativity and collaboration. Veronica and Family Co. and their representatives may not be familiar with the process or understand that the process is confidential. Explaining both the process and its confidential nature gives you an opportunity to begin developing relationships with all participants. You may also want to encourage the parties to agree on a high-level outcome, such as “reaching agreement about Veronica’s return to work.”
Finding workplace solutions through mediation can be very different than mediating a litigated case. Creating open communications, that allow both Veronica and Family Co. to express their concerns and desires is critical to success. If the parties are together, and one of them begins to shut down communications, you may need to intervene to assure that both sides have an opportunity to have their concerns heard.
You may want to ask guiding questions, move within the room, take a break, or even separate the parties to assure that you understand everyone’s needs and desires.
Discussing possible solutions too early in the mediation process may result in a solution that does not meet everyone’s needs, a temporary patch, or impasse. In some mediations, there is a natural evolution of the discussion from needs to solutions. In others, you may have to use a combination of open-ended questions “Is there anything else that I should know at this point?” and intuition to decide when to move discussions toward solutions.
As solutions begin to surface, continue to ensure that communications are open, the parties remain flexible, and that they are committed to finding an innovative solution that will allow Veronica to return to work. This may include a wide variety of items, such as date of the return, changes to her job, changes to her work station, flexible time for her to continue in therapy or to obtain any court orders, an internal contact for support, Family Co.’s agreement to assist in obtaining a restraining order.
Additional problems and solutions may surface as you move toward agreement. You assure the parties that the discovery of new concerns is normal, and they are making great progress. The solutions are myriad, but should be feasible, address the parties’ concerns, and accepted by all.
Once you have agreement, you verify that everyone understands what they have agreed to do. You provide a written term sheet, or the parties or their representatives can collaborate on one documenting their agreement. Congratulations, you have rebuilt a relationship that had been seriously damaged!