War and Peace: Should You Discipline or Mediate?

The author considers the potential for using mediation to resolve conduct problems where a collaborative approach may prove more successful than a punitive one.

Toward the end of a seminar concerning performance and conduct issues in the Federal workplace, a senior manager raised his hand. “I’ve tried mediation 4 times — all without success.” Upon further questioning, I learned each mediation concerned a completed disciplinary action being contested by an employee. No wonder it didn’t work — it was too late. Mediation can often work better than discipline if used in the spirit of modifying the behavior that led to the action.

When Discipline Doesn’t Work

Most disciplinary actions have been decided at several levels of an organization before being received by the errant employee. The boss, the boss’ boss, HR, EEO, and who-knows-who may have already had a say in deciding to discipline the employee. Letters have been prepared and carefully reviewed before issuance. As a result, a letter of reprimand that could have been typed and delivered in a day or two may take weeks.

Now, when the employee receives that carefully crafted and thoroughly reviewed reprimand, what effect will it have? The expectation is the employee will change behavior and in some fashion say, “Thanks, I needed that!”

If not, to what end are we going through these administrative hoops? Wasn’t discipline intended to correct the problem and prevent its reoccurrence? If we look inside ourselves, can’t we understand how formal discipline can fuel animosities and resentments?

It’s time human resources specialists, union officials, and management agreed that, often as not, discipline fans negative passions rather than creating a climate for constructive change.

Attitudes and Escalation

Disciplinary action presumes a power differential. Parents discipline children. Police and judges discipline perpetrators. Principals discipline students.

Discipline is separate and apart from poor performance. In true performance cases, the employee (who could be a supervisor, manager, or executive) is incompetent. The Peter Principle has caught up with these folks. It could be a missed opportunity during probation to weed her out, a promotion he never should have gotten, or a reorganization where an employee’s career was saved by putting her in a job she was never meant to do. Those are performance cases

This article, however, concerns discipline. In these cases, the offending individual has violated a rule or norm that the authorities believe is necessary for the smooth functioning of the school, family, or in our case Federal agency. Employees are usually disciplined for willful acts that test these rules/norms.

In school, it was shooting spitballs, insulting teachers, and cutting class. At work, it’s not much different. Accountability and the presumption of consequences live on. The more often you’re caught (and it’s documented that you broke the rule) the more extreme the response.

The hope and intent of discipline must rest in a belief that sanctions in response to intentional acts will lead the offender to refrain from similar actions in the future. If the employee (or student) escalates their misbehavior — the supervisor (principal) will escalate the penalty. In some cases, the option of removal (or expulsion) appears on the horizon.

The Bad Boy Scenario

It may prove therapeutic to take myself as an example. I abused sick leave — for my fist couple of years as a Federal employee. (Mea culpa Social Security!) I called in sick and, in most cases, went fishing.

It wasn’t as if I was unclear regarding the government’s attendance rules. When I would call in to report my absence, I was lying — to my own boss. In essence, I was playing the part of a child fibbing to a parent or teacher. Often the kid (and so often it’s a boy) is unaware that the authority figure sees right through the lie. She’s on to you, bro.

This habit or pattern of adult cheating had to stop. My coworkers loved and appreciated me, but must have speculated regarding my leave abuse. After all, most of them never cheated — even though they must have been tempted. As is often said, I was a terrific worker… when I was there.

Until my supervisor confronted me, I continued to willfully violate leave regulations. In hindsight, I’m amazed how long it took for a boss (in this case, my third) to sit me down and speak the truth about what he was experiencing.

At that point, I had two options:

  1. I could deny ever having lied or cheated. I would then assert that he couldn’t prove I wasn’t sick and enter into a legalistic contest with my own boss. I might even make moves toward a union representative or the EEO office just to level the field of combat with my leader; or
  2. I could become highly embarrassed and either apologize or just shut up and “take the hit”. Upon leaving I would acknowledge to myself that she was on to me and that I’d better not try it again… at least until I got another supervisor.

[To know which scenario I chose, send a twenty dollar bill to…]

Why Mediate?

When employees choose the first of these options, mediation could prove a great alternative to discipline. Not in every case, but in most.

Using a skilled third party to facilitate a discussion regarding potential disciplinary matters (before any paperwork is issued!) not only saves time and expenses (by precluding grievances and other escalations) but offers more reliable solutions.

Discipline (the logical next step in this scenario) focuses on facts and documentation. It’s about evidence and proof. It’s about legalisms and paperwork and grievances and judges. Discipline is great for establishing and responding unilaterally to what happened. In many cases, that’s most appropriate. In others, the result is often bitterness, resentment and/or defiance.

Mediation, on the other hand, focuses on underlying reasons (or what mediators call “interests”) that may explain the employee’s behavior. It’s about the “whys” behind the facts. It presumes that both the errant employee and the enforcing supervisor will take a few hours to look at themselves and each other — honestly. If there is a meeting of the minds (and there usually is) then they share the responsibility for divining a solution.

Inside the Touchy-Feely World

I mediate Federal employment disputes. It’s a way for me to volunteer my time when not teaching. Over years I’ve learned a lot. I’m still learning. I’ve also come to realize there are lots of bad mediators out there… and lots of good ones too.

When the mediation concerns a matter that might result in discipline, my role is to facilitate dialogue. It’s a discussion that is both sorely needed and unlikely to be successful without third-party assistance.

Good mediators can often help folks express what’s not being said. Examples abound. “I stopped trusting you after that incident when…” or “I think you were lying to me when you said…” or “You have a way of smirking that makes me…”

Mediators aren’t miracle workers and yet we often witness minor miracles. I remember a potential disciplinary situation that was diffused when the employee explained how her medical condition was affecting her life. As she spoke, her managers (who had been so skeptical coming into the session) finally understood. When they explained the pressures on them, she was able to acknowledge that her own lack of communication had put them in a difficult position. A potential disciplinary nightmare ended in a few hours. In mediation, some of the thorniest problems begin to solve themselves after just a few hours of sincere and confidential discussion.

In most cases, both sides come to understand each other much better than they did walking in. We charge them with finding their own solution to the problem(s)… and they usually do.

Suffering the Skeptics

Wherever I go in the Federal sector, I hear folks tell me about how mediation didn’t work for them or someone they know. I began to question my own experience or wonder if I was a much more competent mediator than the ones they we employing.

I’ve come to believe that when mediation works people are less likely to discuss or broadcast their successes. On the other hand, when the parties leave without a clear resolution, their complaining seems louder and more widespread. Those who have had bad experiences aren’t lying, they’re just angry and loud.

The fact is that mediation has a high likelihood of success and satisfaction in almost every setting. According to the Equal Employment Opportunity Commission:

“An Evaluation of the Equal Employment Opportunity Commission Mediation Program examined the program from the perspective of charging parties and respondents and their satisfaction with the EEOC mediation process. The survey of parties who participated in the program found the process to be fair and neutral, and 96% of respondents and 91% of charging parties indicated they would use the mediation process again if the opportunity arose, even where the results of the mediation were different than they had anticipated.”

…and that’s from the contentious world of EEO! Still, HR specialists, union representatives, and lawyers who are vested in the adversarial system may look at mediation with a jaundiced eye. I used to be among them. It’s easier to take sides.

Moreover, many people fear the private and confidential aspect of mediation. Management and HR aren’t solely in control of the outcome. It’s likely they don’t know the mediator and can’t predict where the discussion will lead. Accordingly, many folks turn away from the possibility of making peace through respectful dialogue.

Give It A Test Drive

Mediation in lieu of discipline can lead to better solutions — ones that the combatants will create and support. There are occasions where mediation is inappropriate. In most circumstances, however, the best tool for getting employees on the right track is to put them in an environment where they share responsibility for solving the problem(s).

Supervisors are neither cops nor principals. Employees are neither kids nor criminals. To support management, employees, unions, and the mission it’s time to acknowledge that discipline is not always the best way of correcting misbehavior. A mature, collaborative use of third-party mediators may prove a better and more effective option for everyone involved.

About the Author

Robbie Kunreuther is the Director of Government Personnel Services (GPS). GPS provides 1 to 3-day seminars to Federal agencies in four subject areas: Dealing with performance and conduct issues; Developing sensible performance appraisal criteria; Fostering cooperative labor-management relations; and Applying mediation skills in the workplace. Over the years, Robbie has trained thousands of Federal supervisors, managers, HR specialists, and union officials. For more information about him and GPS, go to trainingfeds.com.