Resolving the emotions-driven employment case

Three simple tools for managing runaway emotions

2014 September

Anger. Sadness. Fear. Disgust. Shame. As you well know, disputes are often full of powerful, negative emotions on both sides. Sadly, these emotions can overwhelm good judgment and damage attorney/client relations, thereby reducing the possibility of a timely and successful out-of-court resolution. Some-times, they even force an otherwise risky and unnecessary trial.

This article is about helping attorneys and other professional conflict managers reestablish order after the client’s emotional brain has overpowered his thinking brain. It’s also about the effective use of mediators to accomplish this task.

When emotions take over

In his classic book, Emotional Intelligence, Dan Goleman says, “(Emotions) are self-justifying, with a set of perceptions and proofs all their own. . . When in control, the emotional mind harnesses the rational mind to its purpose, thus distorting past memories and current realities.” What matters is what seems to be rather than what is, what is desired rather than what can be reasonably expected, and what is demanded rather than what can be negotiated.

An emotion is defined as a feeling and its distinctive thoughts, psychological and biological states, and propensities to act. There are hundreds of emotions — good and bad. Emotions have their own variations and nuances, not to mention the ability to blend with other emotions.

Some people manifest their negative emotions in outbursts, others through quiet storms. But one thing for sure is that when people are acting on an emotion (be it for a split second or for a lifetime), they honestly feel it is the best thing to do, no matter how stupid it may appear later. You see, most people act out because they prefer a conflict they know to the resolutions they cannot completely imagine. People also use emotions to keep from getting at the core of the conflict, which may be too painful to face head-on. It’s not unusual for people to use strong emotions to avoid having to deal with owning their role in the conflict. In any event, emotional over-reactions and under-reactions are merely attempts to gain or regain control.

Experience has shown that given their left-hemisphere mindset, many conflict managers, especially attorneys, have great difficulty dealing with the emotions of their clients. Having been trained in the logic-driven rigors of fact-finding, analysis, and debate, it can become impossible to properly address highly charged matters of the heart and spirit. For that matter, attorneys often unwittingly feed the emotional fires of their clients.

Here’s how . . .

Conventional wisdom demands getting a “good, tough lawyer to protect your interests.” Knowing this, some attorneys feel it’s their duty to play that role to the extreme. The issues between the disputants then become subordinated to the increasingly complicated litigation process, and the “winner-take-all” battle between the attorneys. Feeling overwhelmed, the clients are forced to hide behind their attorneys, and relinquish all control over the outcome. At this point, according to a seasoned mediator, “effective communication between the (parties) has been all but eliminated, and…the parties undoubtedly feel more not less fearful and experience greater not less anxiety.”

This is where “emotional intelligence” can put the conflict manager and their client on the same page. Here are the tools to foster that goal:

Tool #1: Emotional collisions

Like it or not, there is no official place for emotions in the litigation process. This is unfortunate in that a simple clearing of the emotional air can move numerous conflicts to resolution. Only then can the unseen emotional complexities surrounding a case surface. This is especially true in situations involving workplace diversity, discrimination and harassment.

I recently mediated a seemingly impossible, employment conflict pitting a “facts-only” corporate attorney against an abrasive, highly emotional plaintiff. The breakthrough finally came in caucus when I validated the plaintiff’s frustrations and asked what I could do to make the process easier. That is when she confided that she had a mental disability (unbeknownst even to her attorney) that interfered with her ability to communicate civilly under stress. I then decided to keep the two sides apart and to translate their respective points of view in a manner each could respect. That important finding made all the difference for a variety of logical and emotional reasons. The case settled quickly because the plaintiff finally felt listened to and understood. And the defendant’s attorney was able to appreciate the validity of the plaintiff’s position.

Tool #2: Reality checks

“Is that all they’re willing to offer, after all I’ve been through?”

“Why should we give that (expletive deleted) a dime?”

These are examples of what mediator Jeff Kichaven calls the Climatic Question. It is the defining question that conflict managers know will arise sooner or later, and that they had better be prepared to answer with conviction. Otherwise, cases that should settle won’t, and the manager is stuck with a continuing lawsuit and a client or boss with serious doubts about the manager’s effectiveness.

When faced with these and other troublesome situations, conflict managers should take advantage of a good mediator’s ability to safely deliver bad news to difficult, inflexible clients by expanding their perspectives. Take, for example, the case of a delusional client who wouldn’t back off the overly “optimistic figure” his attorney quoted well before unexpected discovery suggested far less. The attorney feared to further press the issue with the client; so she pursued mediation. The opposition concurred, and I was selected to mediate the case. After the mediation, I learned that I had been the agent of reality that the attorney in question had expected me to be. That is, I presented (in caucus) some modest outcomes of similar cases I had experienced and talked about the inherent risks of a trial. After presenting the reality check, I left the room and invited the client and his attorney to discuss the information so they could agree on next steps. Not surprisingly, the client quickly adjusted his stance, and was very happy accepting a more reasonable figure recommended by his attorney.

Tool #3: Non-monetary solutions

“When they say it’s not the money; it’s the money − but not every time.” That old saying has been modified to recognize the fact that emotions aren’t always driven by money alone. Mediation unlike litigation is excellent at finding the pivotal, non-monetary needs that can sabotage an agreement.

This is because skilled mediators are equally adept at dealing with the interests of the parties as well as the facts of the case. Getting away from win-lose debates over which side has the higher quality facts and moving toward creative, collaborative solutions are at the heart of the mediation process.

Think how often you’ve heard this statement or its equivalent from a distraught disputant: “I just don’t ever want this to happen to anyone else.” Concern for others is as much an emotional interest/need as are safety, greed, and revenge. Accordingly, a defending employer’s offer to begin a manager sensitivity training program might be just the thing to end a stalemate. Sadly, if attorneys aren’t truly sensitive to the significance of such seemingly innocuous statements, they miss out on the opportunity to really satisfy their most difficult clients.

Bonus tool: Diversity antennae (be alert)

The workplace has become a primary meeting ground for people of highly diverse backgrounds. However, it would be very limiting to think of diversity issues existing only between the disputing parties. There may also be some very real problems between the parties and their respective representatives, as well as problems with the neutrals hired to help resolve the conflict.

Thus, there are the clashes of decision-styles, communications patterns, personal interactions, expectations, behaviors, priorities, role definitions, and leadership styles. Each participant has his own unique definitions, assumptions and stereotypes. And when they are challenged, a cycle of distrust and emotional storms can rapidly develop.

Imagine this situation:

You are a 20-something, Hispanic, single mother, clerical assistant who is accusing her boss of sexual harassment. He is a middle-aged, married, white, executive v.p.

You’re in a mediation room with the accused and his all white male (good-ol’-boy-network-looking) defense team. And, by the way, you’ve just realized that your African-American attorney has much more in common with them than with you.

The mediator is expected to arrive any minute.

Some loaded questions:

• If you were she, just how trusting of any-one currently in the room would you be?• Who would you least want to see enter the room as the mediator? Why?• Would you trust any of them? Or would you be tempted to trust yourself and, by default, your own emotional self-protective behavior?

Unfortunately, I have seen this scenario played out countless times, and not just in harassment complaints. I have seen similar imbalances across all types of employment dispute resolution processes, and their very predictable results.

Conflict managers should not assume that their clients trust them without reservation. Nor should they select neutrals solely on the basis of their legal credentials. Rather, these managers should evaluate the potential for “diversity mismatches” and move to address them, forthwith.

Conclusion

Apprehension/despair, embarrassment/ humiliation, and wonderment/shock are just a few of the numerous other misread, emotional deal-killers. Good mediators know how to identify them even in their most subtle forms, and then help discover effective solutions. And these solutions may have little to do with money. Sometimes nothing more is needed to make it all go away than a sincere apology and an enforceable promise to change.

My final advice, when presented with an emotionally charged dispute(s), is to select a determined mediator and steadfastly commit to the mediation process. My friend and mentor Kenneth Cloke says, “Refuse to give up on anyone, no matter how unpleasant, opinioned or difficult they are to deal with.”

The process and the aforementioned tools work! Even when it seems impossible to reach people, or when pain and rage explode, there’s always that possibility (no matter how remote) that someone will say something that turns the entire mediation in a positive, constructive direction.

So, always hold the thought that resolution is possible. Hopefully then, people at your mediation table will catch your infectious commitment, and walk away having learned something positive about themselves and the conflict, even if a mutually beneficial agreement isn’t reached.

This article was adapted from Chapter 45, Managing Client Emotions: How a Mediator Can Help, L. Therese and Bill White in the American Arbitration Association’s Handbook On Mediation, 2nd Ed, 2010.