Workplace Issues Mediation and Negotiation

Workplace Conflict and Injustice: Mediation Options

It’s difficult to discuss an employee dispute or issue of recent times without thinking of the #timesup and #metoo movements. While these movements have been most visible in Hollywood, they definitely impact women in every industry and workplace scenario. More and more women are refusing to be silent when it comes to dealing with sexual harassment and related toxic behaviors in the workplace—and they shouldn’t have to be. This paper will examine an instance of employee conflict that occurred not within the entertainment world, but within an adjacent industry—the lifestyle and sports apparel industry, concerning one of the giants in the field—Nike.

The problems at Nike involved inappropriate behavior in the workplace, sexual harassment, and even sexual assault. Women within the company detailed workplace violations such as, “ There were the staff outings that started at restaurants and ended at strip clubs. A supervisor who bragged about the condoms he carried in his backpack. A boss who tried to forcibly kiss a female subordinate, and another who referenced a staff member’s breasts in an email to her. Then there were blunted career paths. Women were made to feel marginalized in meetings and were passed over for promotions” (Creswell, et al., 2018). To make matters worse, in some divisions within Nike, women weren’t represented at all, and when they made complaints to areas like human resources, there were no changes implemented (Creswell, et al., 2018). The female members of staff at Nike engaged in an organized revolt via anonymous survey, inquiring whether each had ever been victimized by sexual harassment or gender discrimination. The results of this anonymous survey ended up creating an overall coup within the executive ranks of earth’s biggest sportswear and apparel firm. In the first week of March 2018, the packet of anonymous surveys ended up on the desk of Mark Parker, Nike’s chief executive. The results were as follows: many of the men who were in positions of power who engaged in this toxic behavior ended up leaving the company or announcing their resignation (Creswell et al., 2018). This group of men included Trevor Edwards, the head of the Nike brand who was largely viewed as the main person to replace Mark Parker once he retired, and Jayme Martin, the right hand man to Trevor Edwards (Creswell et al., 2018). In the case of Nike, it is wonderful that so many of the men who abused their power ended up leaving their jobs; however, upon reflection, one wonders if there could have been another way that the female employees could have reaped a greater benefit in light of all the abuse that they suffered for so long. While the anonymous surveys were beneficial and protected retaliation against women at the company, it would have been better if this packet of surveys had been delivered by an attorney or mediator representing the women.

The representative needs to be someone outside the company who can engage in a one on one approach with Mark Parker, the head of Nike, and ultimately negotiate on behalf of all these collective women. The ultimate objective for workplace mediation is for all the parties to resolve the issue themselves, without anyone filing a lawsuit, and so that a nuanced decision is reached that ultimately pleases everyone, and that everyone finds to be just (Dickinson, 2016). In the rare case that the mediation does not end in a resolution, the parties should get a more in-depth understanding of the concerns and perspectives of the other side, and the origins of the conflict (Dickinson, 2016). In this case, because workplace abuse occurred repeatedly and was protected in this environment, the issue is a bit more one-sided. The women represented by this mediator need to understand that a toxic work environment has been created and sustained right under his nose, and it is up to him to fix it immediately and make retributions to the women in the most just manner.

The advantages of this one-on-one approach are clear: first of all it is more practical than attempting to have the hundred or more women who were made to suffer abuses at Nike have time to discuss their experiences and perspectives with Parker. The mediator or attorney can act as their representative and succinctly outline all the many ways that women were harassed or otherwise marginalized in this poisonous work environment. While mediation works best when issues are nipped in the bud, mediation allows for a clear exchange of communication to occur so that the female employees of the company can heal. Other benefits of mediation are as follows: “it’s confidential and private and can be done within a relatively short timeframe; participants [in this case via the mediator/attorney] have a voice and a safe forum to vent, clear the air and express their perspectives” (Dickinson, 2018). Rather than just dropping a set of anonymous surveys on the desk of the company president, the women involved might have considered going through a more empowering process where they could have negotiated for new terms at the company that might have made up for pass transgressions and incidences. Many women had their careers blunted by the foul, repressive environment that was allowed to fester in this sick corporate culture. There needs to be some sort of retribution, and mediation can ensure that this is exactly what happens. Another major benefit of mediation is that it ensures: “past actions are explored and participants have the opportunity to understand the source of the conflict that’s arisen but it’s also future-focused, insofar as any agreement reached can provide a framework for an ongoing relationship – how we communicate with each other, how we resolve future conflict, etc.” (Dickinson, 2016). This is so important because mediation will also give oxygen to the smaller grievances, the microagressions that were allowed to dominate this firm and will demonstrate to the President how there needs to be a complete overhaul of the corporate culture.

Another major benefit to mediation or attorney negotiation, is that the representative for these women can go in with demands and solutions already prepared. This representative can begin the mediation process with a list of men that need to be fired; the consequence of not firing these men is a lawsuit. The mediator can also itemize another list of demands that need to be met: such as women who are overdue for promotions, or departments of the company that need to be revamped in order to reflect more inclusiveness. Another such demand that the mediator can make is that there be a dramatic and permanent overhaul of the corporate culture, and that they hire a corporate culture specialist to make changes, give talks and set new boundaries and standards for workplace behavior. Agreeing to something like this would ensure that Nike sends a clear message that it takes this matter very seriously and that it will do anything necessary to change and to help the women who have been victimized, and attempt to restore the damage that has been done to the company and to relationships.

  Of course, there are times when mediation demonstrates disadvantages. Not everyone might agree to the mediation or the resolution posed by the mediator. “Second, the informality of mediation could prove to be a detriment when the parties involved have a disparate level of sophistication, power, and/or resources which could possibly result in an unfavorable settlement for the party that lacks the sophistication, power, and/or resources to properly understand and resolve the dispute” (Benton, 2015). In order to overcome this, in this case it might be beneficial for all parties to agree to have attorneys present during the mediation (Benton, 2015). Similarly, sometimes the result of the mediation is questioned and one of the parties decides to sue. In this case, it would be wise for both parties to agree that the resolution of the mediation be binding no matter what (Benton, 2015).

Created Scenario

Hence, a comparable scenario might be if a qualified woman in a major corporate workplace decided to go into mediation with her supervisor and/or president of the company, due to the fact that she was being constantly passed over for promotions. In this case, the mediation approach would protect the parties involved from litigation, and it would help air out issues that the upper management might not have even been aware of. This would help clue in the upper leadership that there were discriminatory practices at work within their company, and perhaps this might be a sign of other even more serious issues. Similarly, for the woman involved it would be a way of ensuring that all the time she’s spent within this company was not wasted and that she received the career advancement that so many of the men around her have received.

For the woman involved, mediation might not be the best approach as it might lead to retaliation later on by upper management in some way, or just general resentment. Furthermore, since mediation is a gentler approach, she might not get everything that she asks for or there might be a certain amount of negotiation going on from the management end. This means that in a sense, the woman in question might not get everything she deserves, and since she has had her career blunted for so long, she really should receive everything she deserves.

Litigation, of course, is at time necessary, though it does cause issues for both parties. The first and most obvious issue that litigation causes is cost. Litigation is very expensive and the fact that it is time consuming only adds to the expense. Another major issue that litigation causes is that it’s very public. Litigation means that both parties could be subjected to all forms of press and public scrutiny. This can have a very negative, very dramatic impact on both parties and can be a major drawback and reason for avoiding litigation. Finally, litigation means that both parties can dig deep into one another’s past to sling mud, and perhaps allow one another very public embarrassment. This is another major reason that professional often avoid litigation.
To resolve this dispute, advance preparation is key, but mediation should really be the first step taken, with both sides agreeing to avoid litigation as well as leaking anything to the press. Both sides should be prepared to discuss their perspectives and experiences honestly, with evidence and to be prepared to listen. The mediator can lead the discussion and potential solutions and both sides should select one and “…commit to making the changes necessary to resolve the conflict. Commit to noticing that the other person has made a change, no matter how small. Commit to treating each other with dignity and respect” (Heathfield, 2018). This will ensure that the parties will be able to move forward amicably and to do so with fairness.

References

Benton, T. (2015, October 15). The Advantages and Disadvantages of Mediation. Retrieved from https://www.linkedin.com/pulse/advantages-disadvantages-mediation-terri-benton

Creswell, J., Draper, K., & Abrams, R. (2018, April 28). At Nike, Revolt Led by Women Leads to Exodus of Male Executives. Retrieved from https://www.nytimes.com/2018/04/28/business/nike-women.html

Dickinson, L. (2017, February 1). When mediation is the right approach to resolving workplace conflict - Worklogic. Retrieved from http://www.worklogic.com.au/workplace-mediations/mediation-right-approach-resolving-workplace-conflict/

Heathfield, S. M. (2004, July 10). Steps in Mediating Workplace Conflict Resolution. Retrieved from https://www.thebalancecareers.com/workplace-conflict-resolution-1918675