“In any other workplace…”

gressenhall 1When people learn that I work in conflict resolution, they are often eager to tell me about the conflicts in their workplace.  I hear about bad behaviour, bullying, rudeness, and the description usually builds to the following declaration:

“In any other workplace, this person would have been fired long ago!

And at this point I have to smile, and suppress the urge to roll my eyes.

I have heard this claim from people in large organizations and small, unionized and non-unionized, industrial and academic.  Many people are under the impression that their workplace is uniquely dysfunctional and that the person they have told me about – whether a supervisor, co-worker, or employee – is distinctively awful.  The unfortunate reality is that bad behaviour in the workplace is widespread, and no matter how often I hear about it, my heart always goes out to those affected.  Workplace strife and conflict take a terrible toll, not only on the financial well-being of organizations, but also on the mental and physical health of everyone who must deal with it.

While the claim that things would be different in “any other workplace” is not literally true, it does point to an underlying fact about workplace conflict.  Although every unhappy workplace (like every unhappy family) may be unhappy in its own way, certain structural factors in organizations make workplace conflict particularly difficult to manage.  Let me just mention two:

First, the offending person is likely to be perceived as providing great value to the organization.  Maybe he or she is the top salesperson, or has some hard-to-replace set of skills, or is well-connected within upper management.  Whatever value this person brings is perceived as making up for or out-weighing the grief that he or she causes.

The key word here is “perceived.”  It is an open question whether the “value” that a conflict-prone employee brings to an organization really out-weighs their overall cost.  If someone took the time to crunch the numbers, they might be surprised at how they work out.  In his book, The No Asshole Rule, Robert Sutton tells the story of a men’s clothing store in which the top salesman was an overbearing jerk and made life miserable for the other employees.  When he was finally let go, the store’s overall sales actually rose.  Although this person was an effective salesman, his incivility and bad behaviour prevented others from succeeding.  Sutton has many similar stories.

Second, there is often a view that, since it is “impossible” to get rid of the conflict-prone person, there is no point in confronting him or her about their actions or in hoping for any kind of behavioural change.

Is it really “impossible” for an organization to discipline or dismiss a conflict-prone employee?  Only your HR specialist or employment lawyer may know for certain.  As for the hope of behavioural change, I will say only that it will not happen if the employee in question is never confronted about his or her actions.  Conflict-prone employees often lack insight into the effect they have on others.  They may genuinely not realize that their behaviour is unacceptable.  If you are the supervisor of an employee who makes coming to work an ordeal for others and you have not discussed this with him or her, then (sad to say) you are part of the problem.

If a person in a position of power really believes that things would be different “in any other workplace,” then it may be time to ask what is holding your organization back from attempting positive change.

How to Respond to Criticism

MaidHow to respond to the co-worker who criticizes your presentation, to your spouse who disapproves of the way you load the dishwasher, or to the random stranger who passes judgement on your parallel parking?

Everyone has been on the receiving end of criticism.  If you’re lucky, the criticism was relevant, and delivered with sensitivity and tact.  Unfortunately this is often not the case. Criticism can be delivered so badly that any value it may have for the recipient is all but impossible to recover.  (See my previous post for some ideas about how to give constructive criticism.)  Yet attending to criticism, no matter how tactless or ill-conceived, is important.  We get better by attending to critical feedback.  One of the biggest differences between novices and experts in a given domain is that while novices pay more attention to positive feedback, experts hone their skills by attending more to negative feedback.*

Much of what I’ve seen written about responding to criticism is not very good.  Recipients of advice are told not to “take it personally.”  But whether or not it is useful to take criticism “personally” depends very much on what kind of criticism we’re talking about.  Certainly, a scientist should not take it “personally” if her methodology is criticized.  And a graphic designer should not take it “personally” if a client rejects one of his designs.  Yet some legitimate criticism is of a personal nature, and one can only learn from it if it is taken “personally.”  A customer service rep who is criticized for having an abrasive manner does in fact need to take the criticism “personally” if he or she wishes to change and be more effective in the job.

The most important thing about responding to any  criticism is to put yourself in the correct mindset so that you can learn from criticism. Think carefully about critical feedback.  Try to separate those aspects of the criticism that may be useful from those that are not. This can be difficult to do.  It might help to discuss the criticism with a trusted friend or mentor – someone who respects you enough to tell you the truth, even if the truth is hard to hear.

Another piece of advice I’ve seen regarding criticism is to “ignore the haters” – with the implication that anyone who offers criticism is a “hater.”  A more helpful suggestion is to consider the source of the criticism. Is it your boss delivering the criticism, a co-worker, your spouse, a stranger?  How seriously to take the criticism and how to respond will depend on the answer to this question.  Is the person criticizing you angry or upset?  This might mean that the criticism is unfair or inappropriate.  But it is impossible to be sure:  True words are sometimes be spoken in anger.  Again, discuss the criticism with someone you trust, or try to have a conversation with your critic when he or she is more calm.

When responding to criticism, even unfair or misplaced criticism, try not to be defensive.  Do not attempt to answer your critic on the spot.  It is much more important to make sure you understand what is being said.  Repeat back your critic’s words.  This will show that you have been listening, and it will also give you time to frame a response.  Ask questions to make sure that you have in fact understood.  As difficult as it is to hear criticism, walking away confused or unsure about what you may have been doing wrong is worse and more damaging in the long run.

Sadly, some of the people who criticize you (while perhaps not “haters”) will have questionable motives, and some may be acting from confused emotions.  But if someone genuinely wants to help you, or is in a role where giving critical feedback is appropriate, then listen, learn what you can, and be grateful.  It isn’t easy for most people to offer negative feedback, and when they do so out of a desire to help you, recognize that they have tried to do you a favour.

* Stacey R. Finkelstein and Ayelet Fishbach, “Tell Me What I Did Wrong:  Experts Seek and Respond to Negative Feedback,” Journal of Consumer Research.  June 2012.

How to Give Constructive Criticism

everyones a criticAt the grocery store the other day I saw a great example of how not to criticize someone.  I have no idea what started it, but when I walked by the “Customer Service” desk an angry woman was berating the employee there:  “You don’t have the right personality to work in customer service!” she said.  The employee shrugged and mumbled something to the effect that she was trying her best.  There wasn’t much she could say.  How can you effectively respond to a stranger who criticizes your personality?

The incident made me think about the correct (and incorrect) ways to offer constructive criticism.  What was wrong with the customer’s actions?  She offered criticism when she was angry, in public, about someone’s “personality” (rather than say, about some specific actions), seemingly without any consideration for feelings or the impact that her words might have.

There are better ways to criticize, and a lot has been written on this topic.  I’ll keep this to a few suggestions.

Reflect on why you want to offer criticism.  There are many reasons to offer constructive criticism.  It might be part of your job description to offer critical feedback to others.  You might have a genuine impulse to help a friend who could benefit from the advice.  But the desire to criticize can also have a dark side, and taking a few moments to examine your own motives is a good idea.  Are you angry or upset with the person you are thinking of addressing?  Are your comments intended to be wounding?  Does criticizing others make you feel better about yourself?

Pick the right time and place.  Find a time when both you and the other person are calm and undistracted.  Don’t offer criticism (however well-meaning) to someone who is angry or upset.  Don’t criticize someone in front of others – wait until you can be alone.  (This holds true when criticizing children as well.)

Be transparent about your intentions.  What is the purpose of your criticism?  Is it part of a routine performance review?  Is it a response to a request for feedback?  Do you want to help the other person achieve some goal?  Are you trying to get him or her to change some specific behaviour?  Share the reasons for your criticism with its recipient.  Your remarks should not come “out of the blue.”  Constructive criticism is easier to take if it is put in a larger context.

Be nice.  Focus completely on the other person.  Although some people have had more practice than others at receiving critical feedback, I don’t think that anyone ever looks forward to it.  Be as tactful as you can.  Focus on the other person and stay in the moment.  Attending fully to others is a way of showing respect, and this is especially crucial if your message is likely to be unwelcome.

Criticize actions and behaviour – not character or personality.  Compare:  “You are often late for meetings,” and “You are so selfish that you don’t care if others have to wait for you.”  The first is a criticism of specific behaviour; the second is an attack on character.  Which do you think will make the other person defensive and possibly hostile?  (And remember – it isn’t always possible to read intentions from actions.  I have known several chronically-late people who were disorganized and overwhelmed rather than inconsiderate.)

Keep it positive.  When you give specific advice, make your suggestion positive.  If possible, focus on the actions that the person should do, rather than what he or she should refrain from doing.  For example, say you have single male friend who goes on a lot of first dates …. but not many second dates.  He asks for your advice, and you’re pretty sure that his tendency to speak at great length when given the opportunity is part of the problem.  Rather than telling him to talk less, advise him to listen more.  It is easier to initiate a new habit than it is to monitor and curtail an old one.

Start and end with a compliment.  (Sometimes called, “Hug them in and hug them out.”)  This is especially important if you are giving criticism as part of an official role, say as a manager, coach or teacher.  Find something nice to say about the person you are about to criticize.  Begin by complimenting him or her.  (Again, try to make the compliment about specific actions or behaviour; not about general characteristics.)  Then deliver the criticism as tactfully as you can.  Finally, repeat the compliment (or offer a different one) before ending the encounter.  Make sure that your compliments are sincere.  The other person will recognize it if they are not.

Next post:  How to respond to criticism.

Bill 168: A Recent Arbitration Decision

Healing at the Abbey (c.1915)Bill 168 has been law now for just over two years, and we haven’t yet seen many decisions interpreting and applying the legislation.  A recent ruling by arbitrator David Starkman is of interest to labour and employment lawyers and HR professionals because it provides some guidance about Bill 168’s scope and application.  Below I briefly summarize and discuss this very interesting case.

Background:  In 2010 the Peterborough Regional Health Centre, faced with the need to reduce costs, took a decision to replace some of the Registered Nurses (RNs) in the Hemodialysis Unit with Registered Practical Nurses (RPNs).  RPNs have less education than RNs, earn less money, and have narrower scope of practice.  The Health Centre Management planned a 6-week orientation period for the RPNs when they would be mentored by the RNs.  However many of the RNs were unhappy about the introduction of RPNs, which would result in the layoff of RNs, and which they feared would compromise patient care.  Several RNs refused to volunteer to mentor their new colleagues.

Incidentally (or maybe, not so incidentally), the RNs’ concerns were later shown to be valid.  An Independent Assessment Committee found that the hospital failed to plan adequately for the staffing changes, and failed to evaluate whether the changes affected patient care.

Allegations:  Although there seemed to be a great deal of tension and bad feelings in the unit when the RPNs started, one of the RNs in particular was particularly hostile.  (I will call her Sally.)  She engaged in non-verbal behaviour designed to make the RPNs uncomfortable, including rolling her eyes at them, staring and flapping her hands as they walked by her work area, refusing to make eye contact, and on one occasion, walking directly toward an RPN and making contact with her shoulder.  Another RPN reported that, while she was washing her hands at a sink, Sally came behind her, tried to pull her hair in to a ponytail, and made remarks to the effect that, patients do not want hair in the way.

The Employer’s Response:  Reading the testimony presented to the arbitrator, there were clearly many problems on the unit.  Several of the RPNs quit and spoke of an atmosphere of bullying.  Morale was very low.  After a number of complaints abut Sally, the employer met with her to discuss their concerns.  Sally did not acknowledge any wrongdoing.  When her inappropriate behaviour continued, Sally was put on paid leave while the employer undertook an investigation.  The result of the investigation was that Sally was found to have engaged in a pattern of intimidation and harassment and was terminated for just cause.  Sally grieved both the decision to place her on leave and the firing.

The Arbitrator’s Decision:  Mr. Starkman found that the employer had just cause to discipline Sally and to put her on paid leave pending an investigation.  However, they did not have just cause to terminate her employment.  Although the employer had discussed their concerns with Sally she was never formally disciplined.  While Starkman acknowledged that Sally’s conduct was very subtle and therefore difficult to evaluate and discipline, he held that the principle of progressive discipline nonetheless applied, and that termination was too severe a penalty.  However, he also found that Sally’s conduct, her refusal to acknowledge that her behaviour was inappropriate, and her failure to apologize, meant that she should not be returned to the unit.  Instead, he directed that Sally be paid damages in lieu of reinstatement.

(Just an aside – some of you may be wondering, “Can Sally really not have understood that her behaviour was inappropriate?  I’m afraid that this is entirely possible.  For one thing, her co-workers were very reluctant to confront her about her actions.  And trying to understand it from Sally’s perspective, she likely saw herself as a strong advocate for patient care, not as someone who made the workplace a nightmare for others!)

Lessons for Employees:  If you disagree with management’s decisions, don’t take it out on others.  Even if you have a valid point, the organization’s code of conduct still applies.  And if management raises concerns about your behaviour, take it seriously.  If you are on the receiving end of inappropriate behaviour, speak up – either raise a concern directly with the offending party or if that is not possible, speak to management or HR.

Lessons for Employers:  Several of the people who spoke with the arbitrator reported that Sally’s behaviour in the workplace had been a source of tension for a long time.  When employers fail to deal directly with inappropriate behaviour, it rarely corrects itself on its own.  Inaction and delay result in greater costs down the line.  (See my post on the costs of workplace strife for more information.)

Lessons for Everyone:  Eye-rolling?  Flapping one’s hands?  Is this really intimidation and harassment, such that discipline is appropriate?  The answer is yes.  It is clear from the testimony that the RPNs felt bullied, harassed, and unsupported in their work.  As Mr. Starkman wrote in his decision, Sally’s actions were “extremely subtle, and in that sense were extremely insidious. Bullying and harassment can consist of a single incident, or a series of repeated incidents both of which can have great impact upon the victim of the behaviour.”

Drug Companies & Discontinued Products

A & P Heart 1 (color)A sign that one is getting older is that retailers start to discontinue your favourite products.  The Gap no longer carries the most flattering style of jeans; the LCBO stops importing the French rosé you prefer; and the hair conditioner you once swore by is now nowhere to be found.  It can be frustrating when a familiar product is discontinued for seemingly little reason other than changing tastes.  But when the product in question is a drug that one relies upon to control a serious medical condition, “frustrating” takes on a new dimension.

According to a recent article in the Globe and Mail, more than 1,000 Canadians rely on disopyramide (trade names Norpace and Rhythmodan) to control the effects of hypertrophic cardiomyopathy.  In this condition, the muscles of the heart walls become abnormally thick, causing chest pain, shortness of breath and sometimes fainting.  About half of the patients who try the inexpensive drug find it to be so effective that they can delay or even forgo open-heart surgery.  Disopyramide is made by Sanofi Canada, and this past February the company discontinued the drug, claiming weakened demand.  Patients who rely on disopyramide are scrambling to find supplies and at least one patient quoted in the Globe article, unable to track down a reliable supply, is booked for surgery next month.

Sanofi has promised to resume production, but they haven’t said when this will happen.  They have also committed to importing the drug from Europe and offering it for free (under Health Canada’s special access program) until production starts up again.

The Globe and Mail article quotes two cardiologists (Dr. Harry Rakowski at Toronto General and Dr. Lee Benson at the Hospital for Sick Children) who both expressed frustration with Health Canada’s current regulations.  Drug companies do not require any approval to discontinue their products, even when there is no alternative drug available.  And while companies are obligated to give 30 days notice before discontinuing a drug, they are not required to provide any rationale for their decisions.

The website of Sanofi Canada describes the company’s commitment to corporate social responsibility.  (For more on this vexed but possibly useful concept, see “Two Problems with CSR” by Chris MacDonald over at “The Business Ethics Blog.”)  And Sanofi takes ethical issues seriously enough to have a vice-president of evidence, value, and access.

Businesses need the freedom to discontinue products that are no longer profitable.  However, if a financially healthy company makes a decision to discontinue a product, and that decision has serious social ramifications, then considerations besides corporate autonomy come into play.  While Sanofi seems prepared to do the right thing and resume production of disopyramide, is it right that patients who depend on the drug have to rely on the company’s willingness to consider their interests?  Should Health Canada have some role in protecting patient access to vital but perhaps unprofitable drugs?  A month’s supply of disopyramide costs about $30.  What would be the comparable cost for even one patient to have open-heart surgery instead?

“Just War” and Targeted Assassinations (Part Two)

WarIn my previous post I wrote about the U.S. program of targeted assassinations against terrorists and the “just war” tradition.  I focused on jus ad bellum.  These are the conditions that must be met before a country has a moral case to declare war.  In this post, I’ll discuss jus in bello – moral restraints on the way war is fought.

First, a war must not be fought in such a way that it is a greater evil than the evil it is intended to remedy.  (Remember that a “just war” is one that is fought in order to promote good or avoid evil.)  So the harm inflicted by military operations must be both necessary and proportionate to the ends sought.  There is a moral difference between targeting a daycare centre and targeting a munitions factory.  It would be difficult to make a case that demolishing a daycare centre was necessary for victory in war, while demolishing a munitions factory might well help bring a quicker end to an armed conflict.

Second, non-combatants should not be intentionally attacked.

One complication arises right away:  How to draw the line between “combatant” and “non-combatant”?  According to a New York Times article about the U.S. targeted assassination program, when calculating civilian deaths caused by the program, all military-age males in a strike zone are counted as “combatants.” The reasoning is that, “people in an area of known terrorist activity, or found with a top Qaeda operative, are probably up to no good.”

There is a further complication:  If  non-combatants are harmed as a foreseeable but unavoidable “side effect” of some proportionate and necessary military action, then, according to the “just war” tradition, the harm is morally permissible.  Philosophers in the “just war” tradition call this the “doctrine of double effect.”

For example, a leader decides that bombing a munitions factory is both a necessary and proportionate step towards military victory.  However the munitions factory is next to a daycare centre, and there is a risk that the bombs will strike the daycare centre as well as (or instead of) the factory.  The leader does not intend to harm anyone at the daycare centre, yet he forsees that this might be a possibility.  Although the leader must try to minimize the risk of harm to non-combatants (say, by bombing the factory at night when the daycare centre is likely to be empty), he is not morally obligated to spare the factory because of the risk to the daycare centre.

The “doctrine of double effect” is controversial.  Philosophers have argued whether the distinction between “intended” and “unintended, but foreseeable” actions really makes much sense.

The “just war” tradition does not provide a “formula” for getting clear answers on the morality of armed conflict.  It is best approached as a set of considerations for thinking through the morality of particular decisions and strategies.  Again, I leave it to readers to decide whether the U.S. program of targeted assassinations meets the criteria for “just war,” and even whether the criteria are themselves morally defensible.

“Just War” and Targeted Assassinations (Part One)

I just read a fascinating article in the New York TimesSecret ‘Kill List’ Proves a Test of Obama’s Principles and Will.  The article recounts how U.S. President Obama has placed himself at the top of a secret process to designate terrorists for kill or capture.  The President approves of every name on the “kill list” and is said to be determined to limit the extent of the secret program, and to make sure that the fight against Al Qaeda is aligned with American values.  That such a program involves a number of difficult legal and moral issues goes without saying.  For example, the killings are often carried out by drone strikes and as a result innocent bystanders have also been killed.

The Times article refers to Obama’s reliance on “the ‘just war’ theories of Christian philosophers” and it occurred to me that perhaps not everyone is familiar with these doctrines.  I thought it might be useful to say something here about the “just war” tradition, since it remains one of the bases of international law.

With the exception of pacifist cultures that eschew violence, every culture has ways of thinking about the morality of war and observes some conception of “warrior’s honour.”  This is the idea that, even in war, some things must not be done.  The “just war” doctrine sums up the ways in which western Christian tradition has thought about the moral issues arising from war.  (Originally, these restrictions concerned only what Christians could do to other Christians.  Non-Christians were given protection a few centuries later.)  The “just war” tradition stands in contrast to the “political realist” point of view, according to which war is an instrument of foreign policy and its use is restrained only by prudence, not by morality.  The concept of “just war” is also different from what we might call the doctrine of “holy war”- the idea that attacking others is justified in the name of spreading some “faith,” whether that is a religious faith or a political ideology.

The “just war” tradition divides the moral questions about war into two groups:  Jus ad bellum, having to do with the reasons for going to war, and jus in bello, concerning conduct during war.  The targeted assassination program brings up both kinds of questions.  I’ll discuss jus ad bellum in this post and jus in bello in my next post.

Thomas Aquinas (1225-1274) formulated three requirements for the declaration of a just war.  Each is necessary, and taken together they constitute a justification for going to war.

  1. Those who command the war must have the lawful authority to do so.  (There cannot be “private” wars.)
  2. The war must have a just cause.  The enemy must deserve to have war waged upon it because of some wrong it has inflicted.
  3. Those waging war must intend to promote good or avoid evil.  (War must not be fought for the sake of vengeance or self-interest.)

Does the U.S. targeted assassinated program meet these requirements?  I’ll leave it to my readers to think about that.

Next time:  Moral restraints on conduct during war.

Is it ever “too late” for mediation?

your time is running outI was speaking with a potential client the other day.  He assured me that, as a reasonable person, he understood the many benefits of mediation.  But the conflict had gone on for so long, he said, that he feared it was “too late” for mediation.

His remark made me pause.  As mediators, we are eternally hopeful about the possibility of resolution.  (It would be hard to do this kind of work if we were not.)  Is there any point at which it is just “too late” for a negotiated agreement?

After thinking about this for a while, I realized that “is it too late?” is the wrong question.  Indeed, mediation may fail if it is attempted too soon as too late.  If a conflict is recent the parties may not yet be motivated enough to settle it.  In a long-standing dispute, the parties usually know exactly what the conflict has cost them and they may be eager to resolve things and move on.

Rather than ask when is it “too late” for mediation then, the right question to consider is, “under what conditions is mediation unlikely to be effective?”  I can think of at least two scenarios when reaching a mediated agreement is probably going to be particularly challenging.

First, mediation will be difficult if one (or both) of the parties has a strong psychological need for vindication.  Sometimes parties in a dispute feel it is important to be “right.”  (Of course, this is often combined with a desire to have the other party judged “wrong.”)  They want an authority figure – whether that is a judge, a member of the clergy, or the head of their family – to vindicate their version of events and proclaim their position the more compelling.

Second, mediation will be difficult if either (or both) parties disavow any responsibility for the conflict.  A party may see himself as a helpless victim who has done nothing to initiate or prolong the conflict.  If this is indeed correct – if we have a case of one-sided aggression rather than mutual hostility – then mediation is likely inappropriate.  The victimized party would be better off pursuing a rights-based approach.  While such one-sided conflicts exist, it is much more common that a conflict between two or more competent adults has been fed by contributions from both sides.  This does not mean, of course, that the contributions are necessarily equal.  Avoiding a conflict can prolong it, just as surely as can angry words.

Does the presence of either of these conditions mean that a mediated agreement is impossible?  I don’t think so.  A good mediator should be able to help parties reevaluate their priorities and question long-standing assumptions.  A mediator might help a party realize that an apology might be just as valuable (and more conducive to healing) than vindication by a third party.  A mediator can help both parties understand the origins of their conflict and accept shared responsibility.  These are just some of the ways in which mediation (and even good-hearted attempts at mediation) can empower parties and achieve more than the resolution of a conflict.

Cases that should’ve been Mediated: (3) The Sisters Upstairs and the New Wood Floors

Every now and then I hear about a conflict that wasn’t mediated but should have been.  Mediation would have saved the participants time, money and aggravation.  In this case, you do not even have to accept my judgement that the conflict should have been mediated.  Three Lord Justices of the England and Wales Court of Appeal stated that the dispute could have been resolved thorough mediation, without recourse to the legal system, for a fraction of the £140,134 (roughly $224,400 Cdn) that the disputants eventually spent.

The setting is “Eaton Mansions,” a tony block of flats in London, England.  The suit was brought by Mr. and Mrs. Faidi, who own and occupied Flat 6.  Sometime before 2006, the defendant, Elliot Corporation, acquired the lease for Flat 8, directly above the Faidis.  The new owners applied for and were given permission to carry out renovations, including removing the radiators, tearing up the wall-to-wall carpeting, putting a new radiant heating system in the floor, and installing new hardwood flooring.  They went through all of the proper procedures and got permission before doing the renovations.  In August 2010 the flat was leased to a couple with three daughters, aged 14, 12, and 5.

Sometime after the family moved in upstairs the Faidis brought a suit against the Elliot Corporation, charging that the day-to-day activities of their new neighbours caused noise and disturbed them.  They would be spared this disturbance, the claim argued, if the floors were covered by wall-to-wall carpets.  Indeed, each lease specifies that the floors (with the exception of the kitchen and bathroom) should be covered with carpet and underlay.  The defendant argued that when the renovation plans were approved the regulation about wall-to-wall carpeting became moot.  What would be the point of installing new hardwood floors, only to have them obscured by carpets?  Besides, the new heating system would not work effectively if the floors were carpeted.

Judge Freeland, who heard the original case, dismissed the Faidis’ claim.  He relied on expert testimony that the noise insulation installed when the new floors were constructed exceeded the minimum required by the building code.  The judge even went to the trouble of visiting Eaton Mansions to see the floor for himself.  The three judges who heard the appeal (Lord Justices Ward, Lloyd, and Jackson) concurred, finding that it would be “futile and absurd” to go to the expense of laying hardwood floors if they were destined to be covered up by carpets.  (You can read the full text of their judgment here.)

Litigation is adversarial by nature; outcomes are usually “all or nothing.”  Robert Pearce, the lawyer who presented the arguments for the Faidis’ appeal, proposed that a “moderate” amount of carpeting in flat 8 (say, in high traffic areas) would have absorbed some of the noise yet still allowed the residents to enjoy their new floors and benefit from the heating system.  The justices agreed that this would have been a sensible solution; however it was not one that the courts could impose.  The judges stressed that this outcome (strategically placed carpets) could easily have been achieved through mediation.  Justice Ward said it best:  “Not all neighbours are from hell. They may simply occupy the land of bigotry. There may be no escape from hell but the boundaries of bigotry can with tact be changed by the cutting edge of reasonableness skillfully applied by a trained mediator. Give and take is often better than all or nothing.”

Ironically, the Faidis no longer live in flat 6; their son lives there now.  And the family upstairs has also moved on.

Reproduced above:  The Daughters of Edward Darley Boit by John Singer Sargent (1882), currently in the Museum of Fine Arts, Boston.  Image from Wikimedia Commons.

Apprehension of Bias: When Should a Mediator Step Down?

NEUTRAL [- +] Which side are you? I have been closely following the dispute between the British Columbia Teachers’ Federation (BCTF) and the BC provincial government over the appointment of Dr. Charles Jago as mediator. The teachers’ union and the government have been in disagreement for several months over wages and working conditions. The BCTF recently asked the B.C. Labour Relations Board to remove Dr. Jago because of an apprehension of bias.

One of the most important features of the mediation process is the mediator’s independence. Mediators are neutral parties, and not more or less sympathetic to any of the parties in a dispute. The ADR Institute of Canada’s “Model Code of Conduct for Mediators” is very clear on this point. Mediators are not supposed to have an interest in the outcome of the mediation process, or even in whether the parties reach a settlement at all. This is because mediation is meant to be a voluntary process in which the parties are self-determined. The success of mediation depends on the fact that people are more likely to respect agreements that they have entered into freely, and that they have had a hand in crafting.

The teachers charge that Dr. Jago’s links to the provincial government make it impossible for him to serve as an impartial mediator. According to the Globe and Mail, Dr. Jago told the union that he had agreed to serve as mediator in early February – before the BCTF was asked to put forth a list of acceptable mediators. (The union suggested two judges, neither of whom was available.) Dr. Jago also admitted to have seen and commented on the controversial new education bill before it was tabled in the legislature. These factors, coupled with Dr. Jago’s apparent lack of mediation experience, led the teachers’ union to suspect that the process as it has been structured is fundamentally flawed.

Dr. Jago, for his part, has refused to step down. As he wrote in a letter to the BCTF, “I assure you that I am impartial. From the outset, I have been clear that I will be fair and balanced in mediating this dispute.”

Dr. Jago’s unfortunate echo of the “Fox News” motto notwithstanding, he fails to show any realization that assurances of impartiality are beside the point. He may believe himself to be unbiased; he may in fact be completely impartial. But unless both parties in the dispute have confidence in his impartiality, it will be very difficult for him to succeed in mediating the dispute.

The Labour Relations Board has not yet ruled on the teachers’ request. (Indeed, it is not even clear that they have the jurisdiction to rule on it.) If the BC government is sincere in wanting a negotiated settlement to the dispute, they might do well to re-think the process of appointing a mediator. One possible strategy would be devise a list of three or more acceptable mediators and then invite the union to choose a mediator from that list.