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Monday, October 10, 2016

Master Mediator

Cable television has a fair share of advertisements for lawyers. Many of them encourage you to call if you’ve been injured or your prescribed medication has actually harmed you. Some of the firms seemingly fit the term, “ambulance chasers.”

A few years ago, I was up for jury duty. I got as far as the actual selection process. As it turned out, I knew a relative of the prosecuting attorney and lost my favored status. It was a case of dog bites girl, which did intrigue me.

Our courts are filled with civil law entanglements. Perhaps many of these situations could avoid lengthy and expensive efforts at resolution through another method: arbitration. Or mediation.

Most often, we hear about arbitration in disputes between unions in sports or government agencies—like the Air Line Pilots Association International. As for the business world, a study a couple of decades ago surveyed around 1,000 large US corporations to determine their use of what is known as “alternative dispute resolution” (ADR) techniques.

Results revealed that in the prior three years, 87% of respondents had used mediation and 78% used arbitration. There was also a clear projection that this type of conflict resolution was going to significantly expand in the days ahead in commercial and employment disputes.

A second finding was that mediation was preferred to arbitration. Mediation has been proven useful in almost all industries and types of disputes. Why?

In mediation, both sides must agree to a settlement. Using arbitration and litigation, the final outcome is adjudicated. Parties have to live with a decision with which they may not agree. It’s been said that mediation often helps the parties preserve relationships.

I like the idea of alternative dispute resolution. The company where I’m employed uses this method and it’s spelled out in our employee manual. Across the board in America, those surveyed showed that mediation saved money and time. And that benefits both parties.

Having said all this, there is a “however.” It showed up recently in a New York Times article titled, “Start-Ups Embrace Arbitration to Settle Workplace Disputes.”

The story begins with a woman employed at a Berkeley, California, company. She claimed the job description and her actual duties—and especially the hours—didn’t match up. She was refused overtime pay.

The employee attempted to solicit help from her coworkers by means of a class-action lawsuit. Not so fast. The company, WeWork, had a policy requiring employees to resolve disputes using arbitration. This would eliminate any type of class action lawsuit in the courts. When the employee, Tara Zoumer, refused to sign the new policy, she was fired.

But the trend is definitely headed toward more of this type of conflict resolution. As the Times points out, “Uber and Lyft, the ride-hailing services, make their drivers sign an arbitration clause. Square, the mobile payment processor, also requires that employees agree to bring disputes to arbitration…Amazon and Google also use arbitration to resolve disputes with customers.” One San Diego law firm advocates arbitration for Internet-based companies because of the cost savings.

This is the rub. Ms. Zoumer lost her job by rejecting the arbitration method. She felt locked out of options. The assessment is made that arbitration is most often secretive and favors the employer. The process also keeps employees from sharing their experiences to help others facing similar concerns.

According to the Times story, just recently “the Consumer Financial Protection Bureau proposed a rule that would limit financial companies from using arbitration to prevent their customers from filing class-action lawsuits. But the rule does not apply to arbitration used in employment disputes.”

(There is more to the Times story of Tara Zoumer and an interesting twist on a military man with a workplace struggle over arbitration if you’re interested.)

Is there a perfect system to resolve disputes? I doubt it. Two parties locked into their beliefs that they are “right” find it hard to move. Even if one of them is “more right.”

Followers of Jesus were told to avoid lawsuits. In the book of First Corinthians, the hard truth is spelled out:

“And how dare you take each other to court! When you think you have been wronged, does it make any sense to go before a court that knows nothing of God’s ways instead of a family of Christians? …I say this as bluntly as I can to wake you up to the stupidity of what you’re doing. Is it possible that there isn’t one levelheaded person among you who can make fair decisions when disagreements and disputes come up? I don’t believe it. And here you are taking each other to court before people who don’t even believe in God! How can they render justice if they don’t believe in the God of justice? These court cases are an ugly blot on your community. Wouldn’t it be far better to just take it, to let yourselves be wronged and forget it? All you’re doing is providing fuel for more wrong, more injustice, bringing more hurt to the people of your own spiritual family.” (1 Corinthians 6:1-8, MSG)

It’s so hard to let go when we feel we’ve been wronged. But the beauty of a deep trust in a personal God is that He can turn your misfortune into blessing. Try not to curse your enemies. Learn to forgive them.

For Christ followers, the Great Mediator has done so for you.

That’s The Way WE Work. Click on the link to the right to connect via Facebook.

Let’s Talk with Mark Elfstrand can be heard weekdays from 4-6 PM Central. To listen outside the Chicago area, tune to for live streaming or podcasts, or download the AM1160 app. 

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