ASSIGNMENT #3 – MEDIATION CASE STUDY ANALYSIS

When you have answered all the questions below submit your entire case study as a Word document.

Below is a case study of portions of a workplace mediation.  At various points in the case study you will be asked to answer questions.  There are 19 questions you must answer.  The questions challenge you to reflect on the material you have studied throughout this course.  There is no set word limit for your answer to each question but, as a general target, it is recommended that all of your combined answers should total between 1500 – 2000 words, or 5 to 7 double-spaced pages.  You should use complete sentences in your answers, and if you are quoting or referencing ideas from other sources in your answer, make sure to identify where the quote is taken from.

Case Study

Up until last month, Jenny Lui was regarded as one of the most promising financial advisors employed by the ABC International Investment Bank.  Jenny held one of the largest portfolios of individual clients for the bank, managing an aggregate of 200 million dollars worth of assets for her clients, many of whom are investors from Asia.  But her promising investment career came to a sudden halt when she was dismissed from the bank one month ago, after losing the bank’s most important individual client – Mr. Goa, a wealthy businessman from China.

Jenny contended that the dismissal was grossly unfair given the above normal return she was earning for all her clients, including Goa’s investment.  She demanded that the bank either reinstate her employment or pay damages for wrongful dismissal in the sum of half a million dollars, for the injury done to her professional career.  The bank, however, saw the loss of Goa’s business, nearly 50 million dollars worth of investment, as justifying its firing of Jenny.  Although Goa never openly criticized Jenny, he intimated to the bank’s General Manager, just prior to leaving, that he was unhappy with the services he received.  The bank contends it is not liable to reinstate Jenny or pay any damages for her dismissal, and that she is liable for the bank’s loss of business.  With both sides stuck in a deadlock, they decided to give mediation a chance.  Both the bank and Jenny agreed to hire Fran Eriksdottir, a labor mediator, to deal with the matter.

Analysis Questions
1.Suppose you were contacted about taking on this mediation. What would your first steps be?

2.Based on the above information, what mediation model do you think might be most appropriate for the resolution of this dispute? Why?

The parties agreed to meet at Fran’s office for their initial meeting.  Jenny arrived with her attorney, while the bank was represented by its General Manager, John Smith, and its in-house counsel.

After Fran welcomed everyone and asked them to choose a seat, she began: “This is a very open process, basically a discussion.  The objective here is to find a way out of the situation you are in that is better than the litigation route.  Having said that, both sides reserve the right to go the litigation route if this does not work out.  Dialogue and communication are important to this process and the emphasis is on constructive dialogue.  I hope that by the time we are finished each of you will have gained a better understanding of the situation, particularly the perspective of the other side.  Each of you will have a chance to talk and take as much time as you need.  The only thing I ask is that you don’t interrupt when another person is talking, and refrain from being rude in any way.

In terms of my role, I see myself as an ‘enabler’ – essentially to make sure that both of you put forth your best effort in responding to the situation.  Just like a personal trainer, I can’t do the hard work for you but I can help you do your best. I firmly believe that any solution has to come from you, because at the end of the day, it is you who has to live with whatever solution is agreed to.

While conflict can be costly and destructive, it can offer a tremendous opportunity for growth and developing new capacities.  Rather than boiling everything down to a mutually agreeable price tag, I suggest that we step back, take a broader view of the situation, perhaps even treat it as a learning experience — an opportunity that will help pave the way for you to be a better company or a better employee in the future.

Now, based on what I have said so far, are we all on the same page?  In particular, do either of you have any other concern about the process or rules of engagement that you want us to consider before proceeding?”

Analysis Questions
3.Do you think Fran placed a suitable amount of emphasis on the importance of relationships to resolving conflict in her opening comments?  Why or why not?

4.Identify three strengths and three weaknesses of Fran’s opening comments.

5.Would you say Fran’s style is evaluative or facilitative?

Both sides nodded, and neither had anything else to add.

MEDIATION CASE STUDY ANALYSIS Cont.

Fran then said: “Now, I want to take the next hour or so to let each of you have a chance to go over the issues that you want to explore.  Unless the lawyers disagree, perhaps Jenny could start?”

Almost an hour into the meeting, both sides had a chance to give their version of the story.  Fran said: “From what I can hear, I sense that both of you share a number of similar perspectives on the situation.  In particular, I think Goa’s decision to take his money elsewhere caught both of you off-guard.  Would you agree?”

Jenny nodded while John gestured that he agreed.

Fran continued: “How do you feel if we take a break right now?  We can either come back together as a group, or what I often do after both sides have given their account of the situation is to go into caucus with each party.  This allows each of you a chance to speak to me in private, and to speak more freely.  ‘Suggestions?’”

Jenny replied that she welcomed the opportunity to go into caucus.  John said he was fine with that.

Fran: “Why don’t we take a break for 10 minutes?  Afterward I’ll caucus with Jenny.  John will you be back here in an hour so that we can have our caucus meeting?”

Analysis Questions
6.If Fran was using a more transformative style of mediation what do you think, if anything, she might have done differently so far?

7.In Unit 2 we examined the concept of worldview, and how it relates to conflict resolution.  How do you think worldviews might be affecting this conflict and effort at mediation so far?

Caucus with Jenny

In the caucus meeting, Fran brought up the suddenness of Goa’s departure again.  She said to Jenny: “So you didn’t see it coming at all?  Hmm…  Any guesses as to what might have triggered his decision?”

Jenny replied: “Goa’s portfolio was doing well, it was earning an average of 10 to 11% return, which is significantly above normal given the current economic climate and volatility in the investment market.  From a financial point of view, there was little reason for Goa to be unhappy with what I had managed to do for him.  So you see, there is really no basis for the bank to fire me for losing Goa.  Professionally speaking, I have done the best that any sound investment advisor could do.  However, I think what motivated Goa to leave is something other than financial…  On many occasions, he had asked me out for dinner … and the way he asked me suggested to me he was interested in talking about things other than his investment portfolio …, if you know what I mean.  Goa is married and I just don’t want to be involved in any way that is unprofessional.  I didn’t want to offend him, so I repeatedly found excuses to get out of his request, without confronting what he was getting at directly.  Where he comes from, “saving face” is very important.”

Fran took out her notepad and jot down a note.  “Have you ever mentioned this particular aspect of your experience with Goa to John, or anyone else at the Bank?”

Jenny replied: “No.  I tried to keep this to myself.  I didn’t want to involve my boss, because I didn’t want him to think that I couldn’t handle the situation and pass Goa’s portfolio onto my other colleagues.  I worked real hard to get Goa as part of my portfolio, I wasn’t going to give him up so easily.  Plus, in the finance field, it is pretty much an Old Boys Club.  Very few women have actually made it to the top like me.  If you cry for help, you just prove to others that you can’t manage the job like one of the boys”

Analysis Questions
8. Based on the discussion in Unit 2 on cross-cultural conflict resolution, how might you describe the communication between Goa and Jenny?

9.In the caucus, larger workplace issues have come up, such as Jenny’s comments with respect to the norms of behavior expected and the role of gender.  How would you see these issues being relevant in different ways to the mediation process if you were using problem-solving, transformative, or narrative mediation?

10.Based on the discussion in Unit 1 about ‘Order’ how would you describe the ideas about ‘Order’ that seem to be predominant in Jenny’s experience of her workplace?

11.If you were Fran, what would you do next?  Why?

MEDIATION CASE STUDY ANALYSIS Cont.

“How do you think the bank would respond now given this new piece of information?” Fran asked.

Jenny: “I am not sure.  They might use it against me and blame me for causing Goa to cross the professional line.  I’ve heard that in a lot of sexual harassment situations, they just blame the victim…  In any event, it is not going to help my reputation if word gets out.  Actually, … this is one reason why I decided to give mediation a try, before pursuing litigation.  My lawyer told me that in litigation, everything is up for grabs and the process can be very intrusive.  But you know what, I’ve got nothing to lose now.  If I have to fight the bank in court, I will.”

Fran: “Well, … aside from using it against you, are there other possible ways that the bank might respond to this new information?”

Jenny: “I think they will do themselves a lot of good to institute a sexual harassment policy so that similar situations won’t end up like what happened to me in the future.  A lot of the clients from Asia are used to being treated like a “King” where they come from — whatever they want, they get. But here in Canada, there is a different set of social rules.  Money doesn’t always get them everything they want, and they are not used to this.”

Fran: “From the sound of it, you are suggesting that a bank policy against sexual harassment might have prevented the situation you are in.  Is that what you are saying?”

Jenny: “Well, I’m not sure how far a policy can go in protecting against harassment from clients.  These days, banking is a global industry – the bank is competing with all the other banks around the world to woo these wealthy individuals.  When push comes to shove, I just don’t see how a bank would rather lose a client than honor its harassment policy.”

Analysis Questions
12.Fran’s last comment suggests a particular orientation towards the type of outcome sought and the meaning of resolution.  How might you describe that?

13.What do you think is the cause of this conflict?

At this point, Jenny’s lawyer interjected: “If I may interrupt.  By law, the bank has a duty to protect its employee from being sexually harassed during the course of her employment.  So it really doesn’t have a choice like you seem to suggest.”

Fran: “Thank you for pointing this out.  Jenny, from what you are saying… I get the sense that you see the situation, which Goa put you and the bank in, as very complex and delicate.  Just as it was not easy for you to deal with Goa on your own, you seem to suggest that the bank would probably find it difficult to deal with, given what your lawyer said.  But by not telling the bank what you know about Goa, they can’t really respond to the situation to the fullest extent possible, can’t they?

Jenny: “Well… yes.  They have a very sharp lawyer — he would probably pick up how delicate this matter is to the bank’s overall reputation, both as an employer and to its clients.  They probably would like to know the full story about Goa, since it does change the scope of the issue.”

“How do you want to introduce this information when we resume the joint discussion?  Do you want to communicate this information directly to them?  Or do you feel more comfortable if I introduce it first and let you fill in more details?”

Jenny consulted with her lawyer briefly and decided to have Fran introduce the additional information.

Caucus with the Bank

Fran opened her meeting with John by noting that she had had a very informative exchange with Jenny, without revealing any details about that exchange.  She then asked the bank to clarify what was the reason behind its firing of Jenny.  John explained that the bank has always prided itself on 100% customer satisfaction, and that no employee should feel they still deserve their job if they manage to lose a big client like Goa, particularly in today’s highly competitive banking environment.

“But clients can leave for many reasons that may have nothing to do with how well an employee has served the client, can’t they?”,  asked Fran.

“True. But in this case, Goa actually said he was leaving because of how Jenny handled his portfolio,” said John.

Fran then asked about Jenny’s investment record.  John replied that Jenny had a stellar track record in terms of her portfolio performance.  In fact, John acknowledged that Jenny had been great with all her other clients, and that the bank hesitated with the decision to fire her, fearing the possibility that some of her other clients might leave the bank with her.

Fran: “So, what you are saying is that, except for what happened with Goa, Jenny has served the bank well.”

John nodded.

Fran: “Do you find it unusual that Goa would find Jenny to be below par given her successful relationship with all her other clients?  Did you investigate whether Goa’s complaint was well-founded?”

John replied: “Yes, I was quite surprised when Goa complained about Jenny. After all, she was the star financial advisor at our bank. But the customer is always right!  Goa did point out that a number of his investments were losing money, even though his overall portfolio was still earning above normal return.  Aside from checking up on the numbers of her accounts, we didn’t do any other investigation.”

Fran: “Now that Goa has left, wouldn’t the bank be worse off if other clients also leave because they trust Jenny and Jenny has left the bank?”

John: “That is no doubt the case.  But Jenny would have to first find another bank to hire her before that can happen.”

Fran: “But by then, the option of reinstating her will no longer be available.  And you will have competition from another bank to contend with, never mind all the other compensatory issues that Jenny is confronting you with.”

John was silent and chose not to disagree.

After pausing for a moment, Fran suggested that they resume the joint discussion.

Analysis Questions
14.Do you think Fran asked the right questions of John?  What other questions might she have asked?

15.If Fran wanted to act in a more evaluative manner, what might she have done?

16.Do you think Fran did a good job when she was in the caucus with John and the bank’s lawyer?

MEDIATION CASE STUDY ANALYSIS Cont.

Resuming Joint Discussion

When the parties resumed the joint discussion, Fran started by saying that each side had articulated their understanding of the situation.  She observed that an important piece of information about Goa was missing in the parties’ previous exchange, and that considering it might help to shed more light on the situation.  She said that Jenny had explained to her during caucus that Goa might have decided to leave the bank because his interest in Jenny beyond her professional financial advisor role was not reciprocated.  Fran suggested that this information about Goa not only shed new light on the possible motive behind Goa’s departure, but also introduced more complexity into the relationship between the bank and Jenny.

John interjected and said, “Jenny, why didn’t you bring this up earlier?”

Jenny responded by saying: “I didn’t bring it up because I didn’t think it mattered…. Look, the only responsibility I had towards Goa was my duty as his financial advisor, which I fulfilled more than adequately well.  So the bank had no good reason to fire me.  Any client can decide to leave any time they want, and we simply cannot control that.  So why Goa decided to leave should make no difference to the situation!”

Fran then suggested that everyone pause for a few minutes, as she thought John might need some time to process this information about Goa.

Moments later, the Bank’s lawyer broke the silence and asked Jenny to explain in more detail her experience with Goa.  Jenny referred to Goa’s multiple dinner invitations and the many not-so-subtle suggestions Goa made to show his interest in her, and the fact that she declined all his invitations and tried to stick to her job in dealing with him.  When asked why she didn’t get others at the bank to help with the situation, Jenny responded by referring to the “Old Boys’ Club” culture that plagues the whole industry and how it made it hard for her to believe that the issue would be dealt with fairly.  She then said that she probably would have felt differently about asking for help had there been a sexual harassment policy in place at the bank.

At this point, the bank’s lawyer said they needed to pause the mediation session until he and John, and perhaps others at the bank, had some time to consider the situation in light of this revelation.

Analysis Questions
17.If Fran was practicing narrative mediation what might she have done differently once the conversation amongst all parties resumed?

18.Based on the information so far about the bank, would you characterize the communication patterns in the bank as low context or high context?

Closing the Mediation Session for the Day

After Jenny signaled that she was willing to pause the session, Fran concluded, “I think we’ve accomplished a lot in today’s session.  You are now working with a more complete set of information about the situation than before.  This undoubtedly is better than having to make a decision based on incomplete or inadequate information.  Both sides have shown a willingness to listen to each other and consider what the others are saying.  These are accomplishments in and of themselves, and may lead to new possibilities as to how the situation may be resolved.  Since all of you have agreed to give the process a bit more time, I will be in touch with all of you in a couple of days to see when we are ready to resume discussion again.

Analysis Question
19.Do you think the approach Fran took would always be successful?  In what contexts and settings might it be more or less successful?