Finding Your True North—A Year-End Reflection

northAs I head into the end of each calendar year, I tend to spend some extra time in reflection. I recently found a list of ten things we should do to find our own true north. The list was in an old file, and I labeled it as coming from a presentation I attended by Dr. Terry Crane. However, I could not find Dr. Crane on the Internet, so I cannot provide further credentials. If anyone has links to Dr. Crane’s information, please send them to me in the comments below.

Here’s the list (it’s a good one):

1. Get an education.

2. Be an expert . . . in something.

3. Don’t take no for an answer.

4. Cultivate mentors—male and female—and never burn a bridge.

5. Build & keep your network; don’t lose a headhunter.

6. Be able to apply technology and understand how it impacts your business.

7. Become a mentor yourself—do not leave others behind.

8. Identify your support system—family and friends—know what’s important to you, and what your tolerance and flexibility are.

9. Take risks—do what’s uncomfortable, you can always go back.

10. Develop a passion for the work you do—it’s too much a part of your life not to.

Based on this list, how are you doing in finding your true north?

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Mediation and Self-Determination

MP900385538The recent article by Robert Bush and Joseph Folger on entitled, “Reclaiming Mediation’s Future: Getting Over the Intoxication of Expertise, Re-Focusing on Party Self-Determination,”  raises interesting questions about the purpose of mediation and whether mediators are adequately pursuing that purpose or not.

1.  The Purpose of Mediation Is Self-Determination

Messrs. Bush and Folger state that their premise is “that self-determination, or what we call empowerment, is the central and supreme value of mediation. [emphasis in original]” I have always accepted that premise as well—any agreement reached as a result of mediation must be truly voluntary on the part of the parties. But the interpretation I give to party self-determination seems to be more limited than what the authors of this article have in mind.

I’ve spent more than twenty years following mediation from a variety of perspectives—as an attorney, as a party representative, and as a mediator. I agree with the authors that party self-determination is often not at the forefront of mediators’ minds. On the other hand, even mediators who are not focused on self-determination can achieve good results which satisfy the parties’ needs and interests.

The essential criterion of self-determination in my mind is the ability of the parties to walk away. Even in court-ordered mediations, the parties should feel free to abandon the process after a reasonable period of time.

But I do not believe it is wrong for mediators to push the parties toward a resolution. As long as the parties feel they have another alternative to a settlement, they are exercising self-determination to stay in the room and seek agreement.

2.  Has Self-Determination Broken Down?

Messrs. Bush and Folger list many reasons why institutional pressures have led to the premise of party self-determination breaking down in mediation. Some of their reasons are

  • Our problem-solving “culture of expertise” causes mediators to push inappropriately for agreements when the parties are reluctant
  • Mediators are now often legally required to have subject-matter expertise in the fields that they mediate (in particular, perhaps, family law)
  • Regulations give preference to mediators with legal backgrounds over those with other professional expertise, sometimes even permitting lawyers to mediate without any additional training beyond their bar license.

The authors clearly support the transformative view of mediation—which has as a goal that the parties be changed by the process as they resolve their conflict, rather than simply finding a way to reduce or avoid or compensate for the conflict. In the transformative model, resolving or “fixing” the conflict is secondary to transforming and empowering the parties.

I am not a transformative mediator. I feel no need to help the parties change. I accept that my goal is to see if they can reach agreement, and to push them sometimes toward a reasonable resolution of their conflict. But I also keep enough distance from the parties to recognize that it is their conflict, and not mine.

I tell parties that I am not a transformative mediator and that I will probably push them toward settlement. I also tell them that they are free to tell me no and to tell the other party no at any point in the process.

I have mediated disputes where I know a lot about the legal issues involved and disputes where I don’t know much at all. When I don’t know the law, I feel like I am operating in the dark with respect to helping the parties. I can still help them articulate and focus their issues, but I can’t provide any information about what might happen if they don’t settle, nor can I be sure they have addressed all the issues that are a part of their conflict. I may become more transformative as a result of my lack of substantive knowledge, but I don’t know that this is a help to the parties, who are often unrepresented by legal counsel.

However, Messrs. Bush and Folger are correct that a law degree is not a perquisite to being a good mediator. Many of the best mediators I have known have been non-lawyers—social workers and psychologists make excellent mediators because they know how to help people communicate. But the best of these non-lawyers have developed a good understanding of the legal issues in the cases they mediate.

3.  Does Mediation Need To Be “Fixed”?

Among the authors’ recommendations to re-focus the field of mediation on party self-determination are that we

  • End once and for all the fiction that evaluative case settlement is mediation—the traditional “settlement conference” mode that often passes for mediation.
  • Undertake a fundamental redesign of mediator training—rather than focusing on managing the process, mediators should focus on supporting party choice.
  • Publicize how has come to denigrate rather than promote party self-determination, which the authors believe is a prime reason for the underutilization of mediation.
  • Change the requirements on mediator qualifications to eliminate demands for mediator substantive knowledge and expertise.

I think mediation can take many forms, one of which is the traditional “settlement conference” mode. That is not a transformative process, but it is a problem-solving process and has value. Not all problems need to be resolved through transformation, any more than an exchange of money can resolve all problems.

There may be an over-reliance now on training mediators to manage the process, but a failure to manage the process can result in angry exchanges that further break down the parties’ attempts to communicate, even when the intent is to “transform” them. I would not eliminate training on managing the process.

MP900341467I came away from the article by Messrs. Bush and Folger recognizing how weak I am in transformative mediation. I acknowledge that there are disputes I should not mediate because of this weakness. Where parties need to have an ongoing relationship, such as divorced parents of a minor child, they need to come to terms with their past relationship before they can move reach a successful resolution to their conflict.

On the other hand, there are times when the parties’ time, money, and other resources are limited. A mediation designed to prod them toward quick resolution of their conflict may well be in their best interests. The mediator should make it clear throughout that the decision to reach agreement is in their hands, but the mediator may also be doing them a disservice not to push when agreement seems close.

In your opinion, should mediators pay more attention to party self-determination than most mediators do today?

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A Good Gift Book: Playing the Game

If you need a gift for someone on your year-end list, don’t forget my novel, Playing the Game. The book has many five star reviews on Amazon, and was ranked the #1 financial thriller this summer in the Kindle store.

Here are a few of my favorite reviews of the book from Amazon:

  • [Playing the Game] has all the trappings of a great tale of corporate fiction, but throw murder into the mix and you have a thriller. The story was so well written, I sailed through it in just one day. A brilliant story wrapped around reality, with believable characters and a plausible plot makes this novel one of the best choices of 2014.
  • If you don’t know anything about the details of how organizations and HR operate and you don’t want to pick up a dry textbook, pick up Playing the Game because, I can assure you, I would have been bored out of my mind if this information wasn’t presented in such an entertaining way. Playing the Game epitomizes information fiction at its best!
  • Rickover’s brilliant prose had to be somewhat anecdotal because the reader is “right there” in those offices, dealing with one crisis after another. This is definitely a fertile story for a movie.
  • This is a fascinating, fast-paced novel about the issues facing the modern corporation: corporate succession, office politics, financing, unionization, and so forth. The characters are sharply drawn and the plot is full of interesting twists; I lost a few hours of evening sleep reading this one, as I couldn’t put it down. Highly recommended!

Thank you for considering Playing the Game!

P.S. Also available in paperback and epub formats on Barnes & Noble.

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Impact of Obama’s Immigration Action on Employers

potus_streamlining_legal_immigration_316x159Will President Obama’s recently announced plan to begin executive actions on immigration help or hurt U.S. employers? The short answer is that it is too soon to say.

The more complete answer is that there will probably be winners and losers among both employers and their employees as details of his stance become clear.

1.  What Executive Actions Might Do, Once Regulations Are Issued

President Obama’s executive order might provide relief on L-1B visas, which I have written about before (see here and here). USCIS will finally provide guidance on the definition of “specialized knowledge” for the adjudication of L-1B intra-company transfer visas.

Some immigrant petitions may become more portable, if USCIS clarifies the “same or similar occupational classification” standard and allows petitions to remain valid even if the individual changes jobs or employers. Currently, new green card applications are required if an employee changes employers or even takes a new position with the same employer. But how broad portability will be permitted remains to be seen.

More foreign students may become eligible for Optional Practical Training (OPT) employment authorization, so that these students with bachelor’s degrees in science, technology, engineering, or math (STEM) fields and who are pursuing other graduate degrees (such as an MBA) can continue to use the OPT authorization.

More National Interest Waivers may be available so immigrants who are entrepreneurs, researchers, inventors, and founders of companies can obtain green cards. These waivers may become available not only for self-employed entrepreneurs but also for key foreign employees of larger companies that provide innovation, job creation, and economic benefits.

In addition, some spouses of H-1B workers may have an easier time of obtaining work authorizations, although we don’t know yet whether this will be limited to spouses of all H-1B workers or only those who have reached a certain stage in the green card process.

2.  What Executive Actions Can’t Do

Certainly, executive actions cannot provide employers what they want in terms of an increased number of H1-B visas. Nor can executive action create an agricultural worker program or any other new temporary worker program. These require acts of Congress.

The President also cannot speed up the process for obtaining permanent residency, although some aspects of his recent proposal might allow for more flexibility during the lengthy process.

The employment verification rules are almost certain to become more complicated. We will have to wait until the government issues instructions on how individuals will get their work permits and on how employers must comply with verifying the employment eligibility those who receive these work permits. These permits are temporary in nature, so employers are likely to have to follow up when they expire.

3.  Conclusion

For these reasons, there remains a substantial need for legislative action on comprehensive immigration reform. The only way we will really improve our patchwork of immigration laws is for Republicans and Democrats in Congress to negotiate a workable compromise.

From employers’ perspectives, increased immigration will improve the flexibility of the labor market. At the same time, employers will remain responsible for reasonable verification of workers’ employment status, but employers should not be the primary enforcers of our immigration laws.

In summary, we won’t really know whether President Obama’s executive actions help or hurt employers—or, more accurately, which employers are helped and which are hurt—until we see proposed regulations. Until then, employers should remain cautious and continue complying with existing employment verification rules.

What do you think should change in our immigration laws?

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Holiday Parties: Party Like There Is a Tomorrow (Because There Is)

nix mistletoeOne of the things I disliked most about working in Human Resources was my role as social director.  For some reason, managers thought HR should plan any parties that the organization wanted to hold—recognition events, anniversary and retirement celebrations, and, of course, the annual holiday party.

It’s probably too late for this year, but if you haven’t already arranged your company’s holiday party, here are some suggestions:

  • Be sure you follow all applicable wage and hour laws. If employees are required to attend, then they must be paid. If the event is after-hours and voluntary, then be sure no one is penalized or downgraded for not attending. Voluntary must be truly voluntary. And remember that this month is a very busy time for many families.
  • Watch the singing, praying, and any other activities that might give a religious bent to the celebration. I remember a party where everyone sang traditionally Christian Christmas carols. Some people loved it, but non-Christians were made to feel very uncomfortable.
  • Remember that alcohol is not a good mixer with work. Unless your event is at the end of the work day, off company premises, AND you are willing to monitor your employees’ behavior and arrange for rides home for those who imbibe too much, you shouldn’t serve alcohol. Sorry, folks, but it’s not worth the risk of bad behavior at and after the event.
  • Avoid dancing and mistletoe. See above regarding alcohol. Combining alcohol with dancing and/or mistletoe is just asking for trouble. Your company’s anti-harassment policy remains in full force through the party, whether it is on premises or off.

You might be better off waiting until after the Christmas spirit has worn off, and hold an event to celebrate your company’s year-end results in January.

For more on holiday parties, see

Office Holiday Parties: Revel without Regret, by Anita Setnor Byer

Planning the Company Holiday Party: A Guide for HR, by Shaun Reid

Some Advice with Your Company’s Holiday Party, by John Hyman

Yes, Most People Really Do Hate (and Dread) Your Annual Holiday Party, by  Patty Azzarello

And for an old joke describing the degeneration of one HR manager’s attempt to throw a good holiday party, click here.

When have you seen problems related to a company holiday party?


Filed under Human Resources, Management, Workplace

Favorite Firing: Discharged for Saying She’d Shoot Them All

gun-161223_1280I recently read an opinion in a case, Ames v. Ohio Department of Rehabilitation and Correction,  2014-Ohio-4774, that reaffirmed my belief that employers should control their workplaces. But even though the result was good, it took quite some time for the legal system to resolve the case.

This situation involves social media, which moves far faster than our legal system. Plaintiff’s first problematic Facebook post occurred in the fall of 2009, and the Ohio Court of Appeals didn’t rule until late October 2014.

The Facts: Plaintiff Diedree Ames was a Senior Parole Officer with the Ohio Department of Rehabilitation and Correction. She carried a gun as part of her job duties and supervised other parole officers. Ms. Ames had a history of interpersonal conflicts and erratic behavior. She had previously taken a leave of absence for mental health reasons.

In the fall of 2009, Ms. Ames posted during a chat session on Facebook: “I’ll gimp into work tomorrow. I guess I could just shoot them all…lol!” She continued in this vein, repeating these remarks again during the chat.

Her managers believed her statements violated the Department’s code of conduct, so she was placed on an administrative leave and ordered to undergo an independent medical evaluation (IME). She returned to work after the IME, though she did incur some discipline.

Later, plaintiff texted a coworker named Jill Brady on an employer-owned computer: “U and ur new gf r in a sh** [redaction mine] heap of trouble . . . u should know u will be tracked.”

Ms. Brady sought a protective order against plaintiff Ames, who was ordered to undergo another IME. Ms. Ames’s managers did not feel the second IME adequately addressed Ms. Ames’s propensity for violence, so they ordered a third IME. The third IME found no actual violence in plaintiff’s past, so no reason to believe Ms. Ames was dangerous.

While still on a medical leave, Ms. Ames wrote Ms. Brady again on a message board, “ . . . Feelin the heat yet? It’s coming. I promise. You f***ed [redaction mine] with the wrong person Brady, your ass is mine!”

After this third threatening post on social media, Ms. Ames was fired for violating the Department’s policy against threatening or intimidating another employee.

She then sued, alleging she had been discriminated against on the basis of a perceived disability. She claimed that because she was sent for three IMEs, the Department must have perceived her as having a mental disability.

Both parties filed motions for summary judgment. The trial court ruled in favor of the employer, but Ms. Ames appealed. On appeal, the Ohio Court of Appeals upheld the trial court, and the termination was determined to be lawful—on October 28, 2014, more than five years after Ms. Ames first sent the threatening Facebook post.

The Moral: It is still acceptable for employers to seek to maintain a peaceable workplace, free from violence by their employees. However, enforcing workplace rules against violence can be a difficult process.

In this case, the Court found that the three IMEs were not evidence that the Department perceived Ms. Ames as disabled. “The three IMEs were sought because ODRC believed that appellant had exhibited behavior that made her potentially dangerous or lethal in the workplace.”

The Court found that Ms. Ames was fired for specific conduct that took place after the third IME and could only be construed as a threat against her Ms. Brady. Moreover,

“Her termination came with a backdrop of a prior incident of posting an inappropriate message on social media, a history of ill will, charges and counter charges against Brady, and finally posting a vulgar, threatening statement toward a co-worker under her supervision.”

The question for other employers now is whether it will always take three IMEs and a lengthy history of inappropriate and threatening conduct before they can fire a wayward employee.

I would hope not.

Employers should continue to take all allegations of threats against their employees seriously. It only takes one employee attempting to make good on one threat to bring deadly violence into the workplace.

Like the Ohio Department of Rehabilitation and Corrections, all employers must insist that employees take responsibility for their words and actions, no matter how many lawsuits and appeals result. The safety of other employees may be at stake.

When have you had to deal with a workplace threat? What happened?

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Managing Time & Other Resources: When Do You Take the Easy Way Out?

yoga“The body wants to do the easiest thing possible,” my yoga instructor said to the class a couple of weeks ago. His remark reminded me of my first college class, Economics 101, when the professor began our semester with the words, “Economics is the science of getting the most output for the least input.”

We all want to take the “easy way out,” whether it be in physical endeavors like stretching and strength building, or whether it be our use of resources such as time and money. We want to expend the least physical and mental effort we can and get the greatest result.

Other adages related to resource management include

  • Anything worth doing is worth doing well, implying that we should work until we have done the best we can.
  • The perfect is the enemy of the good, meaning that we should do “enough,” but not strive for perfection.

So which philosophy is the best to adopt, whether at work or in other aspects of our life? Do we strive to overcome our instinctive quest to do things in the easiest way possible, to settle for “good enough”? Do we do enough to get by, but not worry about doing our best? Or do we put out all the effort we can, hoping that the extra effort will pay off?

The answer, of course, is that it depends.

I’ve written before that “systematic neglect” is a valid decision-making philosophy. As I learned from Robert Greenleaf in The Servant as Leader, part of a leader’s responsibility is to decide what not to do, which tasks to ignore. However, we are responsible for the consequences of our neglect.

During my career, there were times when I decided that it was in my best interest to expend extra effort and put out a stellar work product. But there certainly were other times when I put a project on the back burner long enough for it to go away entirely.

And there were times when I was caught with a project undone when it bubbled into crisis mode.

I wished I could tell ahead of time which tasks would become unnecessary and which would become catastrophes. Unfortunately, making good judgments on these issues takes a lot of experience, and even then, it is an inexact science prone to failure.

Still, most of us figure out a balance between doing everything and keeping our sanity. At work, figuring out our own personal balance is part of learning who we are and where we fit in the organization.

It is critical to figure out our balance to be successful, whether we are an individual contributor, a manager, or a CEO. We learn to think about which projects have short-term impacts and which have long-term criticality.

We also learn that the balance changes constantly, as our job changes and as the organization’s needs change.

Whether to take the easy way out is ultimately a decision we make every day. In yoga class, in our careers, in our families.

Think about a time when you took the easy way out—did it work?

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