Mediation: A New Way to Discuss the Complexities of Racialization in the American Workplace
The Ohio State University Moritz College of Law
Class of 2012
Workplace discrimination is not simply a matter of individual action; it is a multi-dimensional process that needs to be fully analyzed. As mediators are uniquely empowered to facilitate constructive conversations and develop solutions that incorporate multiple interests, they should be heavily utilized in workplace discrimination disputes. In order to develop solutions involving race, the larger structural framework of racialization must be understood. Discriminatory practices cannot be understood without an understanding of the inter-institutional arrangements in society which help to create and distribute benefits and burdens in society. Thus, when mediating workplace discrimination, proper attention must be paid to the system as a whole—from the relationship between two people to the history of slavery and segregation as well as the prevalence of uneven and unequal rights.
Since successful mediation incorporates flexible structures and the ability to define and control the process, the mediator may have the best chance of clarifying the issues and encouraging understanding between the parties. Furthermore, because the history of U.S. racism and the creation of racialized identities is not well known, but is extremely important to understanding race in the United States, having a mediator who is versed in this history is necessary. A mediator who understands the historical and structural issues involved in racism will be able to help the parties achieve a more holistic and transformative resolution.
A combination of facilitative and evaluative mediation plus a systems thinking framework is the key to resolving workplace discrimination disputes. Facilitative mediation produces an environment that thrives on dialogue, focuses on emotion, and generates respect for the other party. This focus allows the process to delve into reasons behind actions and helps to eliminate mistaken preconceived notions—essential steps when talking about race. This facilitative framework should be used with an evaluative mediator. The assertive leadership given by evaluative mediators allows for more interaction and instruction from the mediator, which ultimately allows for more comprehensive solutions.
The evaluative mediator should implement systems thinking throughout the mediation. Systems thinking is the recognition that problems are "not comprehensible by searching for single causes or by trying to reduce problems into their separate components for individual analysis and resolution." Using systems thinking merely requires being "attentive to relationships within the system and to the response from the system to our interventions." As workplace discrimination is a complex system where outcomes and behavior patterns do not flow from intentions, a non-linear view of causality is imperative to finding solutions.
From this point, the mediator can introduce solutions that account for these inter-institutional relationships. Ultimately, assertive, systems thinking mediators can do more than resolve disputes between two people; they can use their mediation results to drive targeted changes in workplace policy. Mediation decisions can then be used as a template for creating structural changes in the system.
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- Structural racialization is a term that "emphasizes the interaction of multiple institutions in an ongoing process of producing racialized outcomes." john a. powell, Structural Racism: Building Upon the Insights of John Calmore, N.C.L. REV. 791, 791-92 (2008). john a. powell does not capitalize his name.
- Andrew Grant-Thomas & john a. powell, Culture, Structures, and the Fate of U.S. Blacks, MILWAUKEE JOURNAL SENTIAL, Nov. 3, 2007, at A10.
- SELMA MYERS & BARBARA FILNER, MEDIATION ACROSS CULTURES 21 (1993).
- Murray S. Levin, The Propriety of Evaluative Mediation: Concerns About the Nature and Quality of an Evaluative Opinion, 16 OHIO ST. J. ON DISP. RESOL. 267, 269 (2001).
- john a. powell, Talking About Race: Toward a Transformative Agenda, in RESOURCE NOTEBOOK, 15 (Kirwan Institute, 2010).