Friday, February 7, 2014

Mediation versus resolution: don't expect more than mediation can really give you

Though I don't post often, I've kept this blog up because there is such a scarcity of web resources that share any insight into the emotional side of EEO, reasonable accommodations, or other disability related processes.

Patients blog and share about illness in droves.  The reading and the writing of these blogs are both VERY useful recovery and coping tools.  It is valuable to create and to find that kind of community and support, and to be able to find stories you can relate to so you can just get through it (or even find hope).

With disability and EEO type processes, however, it is often not safe to share and it is painful to do so.  When you've survived it and are far enough away to have a healthy life, you more than likely just want to leave it all behind.

On the other hand, I think that even though survivors may not want to remember how dark things can get, we need to remember how very badly we needed to know it was survivable, and that others had survived before us.

Personally, although I navigated it all with friends and family and my union supporting when and how they could, and a good lawyer I am grateful to, these processes will isolate you beyond your wildest dreams, and I was having to build my own faith (without evidence) that it would someday be done.

I want to offer hope and encouragement, but that only goes so far for people still living these nightmares. Optimism that isn't laced with realism isn't helpful because it isn't accurate or relate-able when it is needed most.

The biggest take home I can offer in this post is that mediation, although described as a forum for resolving the issues, is not really going to give you closure or an opportunity to finally clear your name or have your issues addressed.  That isn't what you're there for.  The process you've survived for months and months is supposed to be there to resolve the issues, but it doesn't really have a step that allows for that unless you litigate (if then). This can be devastating to hear (when you've viewed mediation as the final step to a resolution), but even more devastating to discover after the months and months you've spent awaiting the day with unrealistic expectations.

I want to share this article I just stumbled across, because it shines some light on mediation that is useful in balancing expectations:

Aside from not providing any kind of resolution, justice, or closure, mediation (which will probably focus almost solely on the negotiation of settlement terms) will be horrifically unfair and victimizing.  You will likely believe, in some way, their accusations that you were asking for something unreasonable and that your minuscule outcome is a result of having asked for too much (and, as with the entire complaint process, is really your fault).  Which is really just the way the game is played.

So it is incredibly useful to see the probable realities in writing in this article.  I am seeing this in writing for the first time, and although my lawyer described it as typical (and I'd seen these basic ideas in more general terms before), it is really cathartic to see it written out like this, even after the fact.

No matter how little you ask for, or how much less it is than what you lost (even if its tens of thousands less and doesn't even address what they put you through), they will blame the pittance they give you ON YOU for asking for anything.  Even though you are instructed to ask for what would "make you whole".  It only sets the stage for them to tear you apart and give you nothing---counterattacking you for what was done to you, as with the components of your claim.

Which makes this such a fantastic quote:
"We were so wrapped in the details the rest of the day that involved 22 mediator shuttle trips between the sides, we missed the big picture, the injustice. Mediators uncritically accept and perpetuate the dominance of employers in mediations by allowing the opening bid of $0."
This article is very worth reading.  I trust that I can post this without ill effects at work.  I'd really, really like to believe I can, since I've not disclosed anything about my case and am simply speaking from my heart in hopes of helping others get through this.  I'd very, very much like to think they've long since stopped reading my blog, as I've long since stopped doing anything to protect myself, in order to be left in peace to recover and keep my job.

Their complainant (in this article) was far luckier than me in their mediation in many ways, and the decision making power and overall process of this mediation was different than mine.  But this article is still a very worth while read.

On my way to DC for mediation (a pretty intimidating and expensive location for a sick person who hadn't been allowed to work for 6 months), I met a high level military official on the plane.  He warned me not to be distracted and intimidated by their typical mediation tactics (to distract from the terms you're asking for by badgering and intimidating and making the day about what they'd claim you'd done wrong) and to keep my head on what I was asking for.

Although I wanted to follow his advice, I was sick and tired and defeated, and even though I'd done nothing wrong, I was not stronger than a room full of federal officials and attorneys and I failed.  And despite my wonderings, my husband reminds me, they sleep just fine.

I wonder if any mediation ends differently than that:
"The case ended for the target feeling jilted. It is true that she got more than zero, but the employer must have left feeling that it was a good day."
Although, I walked in without a job and I left with my job back, because they never should have taken it away in the first place.  I didn't lose, but I didn't (and can't) get back what I lost along the way.

The link again, in case you waited to click it, is well worth your time to read:

Wednesday, January 15, 2014