When it comes to using mediation in racial discrimination cases, the question is sometimes asked, “What is there to talk about?” Racism is a terrible thing and should be dealt with extremely seriously. Shouldn’t it just be about punishing the offender? David Liddle, CEO of the TCM Group explains that its not quite that simple.
In cases of deliberate, malicious racism, this may well be the best option. But in the workplace the kind of racism taking place up and down the country is often subtle, nuanced behaviour – and language and incidents are based on ignorance, misunderstanding, a lack of empathy and poor judgement.
Mediation in discrimination cases is similar to restorative justice used in youth court criminal cases when the perpetrator agrees to meet their victim face to face and hear about the impact their actions have had. It allows the victim’s voice to be heard and valued. The fact that many young people would rather spend months in detention than agree to meet their victim shows us what this process is not: an easy option.
It is the same for discrimination mediation. All parties find it incredibly tough and it requires a tremendous amount of courage from all involved, including the employer.
At TCM we recently dealt with a case of racial discrimination which serves as a good example of why it can be so much more productive than the traditional grievance and disciplinary procedure.
A black employee working in an organisation that dealt with members of the public started to notice that he was always being given the black clients. There had been no discussion of this and there was no acknowledgement of what was going on. When he talked to his manager about it, the manager flatly denied this was happening and refused to engage in a discussion about it.
Shortly after, the employee was compared, in a team meeting, to a dodgy second hand car salesman with the strong inference that the comments were being made because he was black.
At this stage the employee lodged a formal allegation of racial discrimination. The investigation upheld the complaint and found the manager had been behaving in a racially discriminatory manner.
So far, sadly, so unremarkable.
But here is where things took a much more positive turn. The organisation made it clear they wanted to sack the manager. The employee said he didn’t want that to happen. Instead he wanted to enter mediation with the manager. The employer agreed to issue the manager with only a written warning on the condition that he agree to take part.
To witness this face-to-face conversation was to see the power of mediation in action.
In a carefully considered and articulate way, the employee described to his manager how the discrimination had made him feel, how he felt it had limited his career and affecting his standing in the eyes of his colleagues. It wasn’t designed to make the manager feel bad, but to share the reality of it. His first-hand account was shocking and painful for the manager to hear but it enabled him to learn the consequences of his behaviour. It made him accountable.
The manager was profoundly grateful for the opportunity to take part in the mediation rather than lose his job. He listened intently, he engaged and at the end expressed to the employee how sorry he was for his behaviour. He took responsibility and made it clear the behaviour would stop immediately.
Next, the two discussed what could be done to redress the situation. The manager agreed to make a public apology in front of the other team members and showed a deep sense of remorse and the desire to learn and change.
Taken as a whole, the discussions stopped the problematic behaviour, restored the mutual trust between the two, and kept both employees at the organisation. The organisation also went on to review its structures to see what could be done differently to prevent this kind of behaviour in the future.
This example shows that the benefits of mediation can work on every level. The victim is heard and gets to tell the other person their experience. The person responsible for the behaviour hears the impact of what has happened and understands why it has to stop. The organisation gets to keep both employees and is able to improve its own approach.
We tip toe around issues of race. That makes people nervous. When they see people who appear to be different they feel they can’t acknowledge those differences in a direct way. There has been an almost complete suspension of dialogue around this difficult issue. Being branded a racist can destroy a career.
Mediation allows those issues to be debated in a safe environment. Mediation avoids labelling people. It changes a vicious cycle of misunderstanding and resentment into a virtuous circle of communication and empathy as people learn what is going on for others around them.
Often in mediation we hear people say, “This is a silly question, but…” and then ask what was meant by a small comment or action that happened months ago. It is the small stuff that people were too scared to ask in the first place that builds up as misunderstandings and conflict.
It takes courage for an organisation to offer the mediation route when it must be seen to taking a zero tolerance approach to racism. It is actually easier to ‘cut out’ the offending person. In the long term though, that approach can leave more damage in its wake.
The recent case involving the Metropolitan Police’s handling of a race discrimination case brought by firearms officer Carol Howard is perhaps a model of how not to handle complaints. A tribunal found that not only had the force singled out and targeted the officer because of her race and gender, but the force had a policy of covering up evidence of racism in such cases when an issue was raised. Needless to say this incredibly damaging adversarial process has left the victim traumatised and resentful while the Metropolitan Police’s reputation has been seriously damaged.
Ultimately, it is useful to ask yourself where you would you prefer to work? Somewhere with a ‘sheep dip’ approach to racism in which everyone goes through a day of sensitivity training and then any problems result in offenders being fired? Or an organisation that offers to bring people together when problems arise and, if both sides agree, to try and explain the effect of the behaviour and work out ways of resolving the problem?
We have seen, time and time again, that both individuals and organisation benefit hugely from having the courage to follow the more nuanced option.
