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This is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction after hearing all of the facts and circumstances in a particular case.

Wednesday, August 2, 2006

The Four Step Mediation Process

In the next series of posts, I will discuss the actual "how-to" after an employee discloses that they are about to transition. I have previously discussed the five elements that a gender transition policy should include, and the first of these is a notification and mediation process to avoid actions that would violate company policy or create legal compliance issues. As a former litigator, I have spent a lot of time with dispute resolution processes. I have seen the good, the bad and the ugly, as well as studying various alternative dispute resolution methods. Here, my preferred process includes four steps that ensure that the parties can express their anxieties about a new work situation and simultaneously ease those anxieties. This requires separate caucuses with the mediator, presentation of a draft transition plan that advises participants of the expected norms, and an arbitration that resolves conflicts. In later posts, I will discuss each of these meetings, their agendas, and the dynamics behind each of the meetings.

Four step mediation process:

  • Step 1: The Gender Transition Leader (usually a designated HR person with training in mediation and transgender issues) will immediately schedule a meeting with the employee in transition to begin creation of a transition plan and provide information about the Company's guidelines, expectations and resources
Note: The meeting should be scheduled immediately because the employee in transition, having taken the long-awaited step of telling the organization, is likely undergoing a high level of stress. The stress will probably relate to the desire to take immediate steps towards transition, and concerns that they are about to lose their employment. An immediate phone call to schedule a meeting will help alleviate the feeling that things are out of control. I have seen situations where an employee in transition, feeling despondent that no one in the organization had contacted them after their revelation, took steps to resign, stopped functioning at work, or came to work in the dress of the opposite sex without notice to anyone at the company. I also note that the purpose of the meeting is to begin creation of a transition plan, not to approve or disapprove of the employee's transition plans. At this early stage, it is more important to listen to what the employee is thinking than to give your opinion.
  • Step 2: Meet separately with supervisory management to discuss creation of transition plan and provide information about the Company's guidelines, expectations and resources. This should be scheduled to occur after the initial employee meeting in order to be able to present complete facts to management.
It is important that the meetings with the employee and supervisor be separate in order to ensure that the inevitable conflicts of interest between them (minor though they may be) do not create initial sparks before each knows what the other is talking about. It is natural for both employee and supervisor to make assumptions about the other, though many of those assumptions may be wrong. By controlling the timing and phrasing of information disclosure, as any good mediator should, the HR-Gender Transition Leader can ensure that conflicts of interest are mediated, rather than gladiated. In this meeting with the supervisor, the main goals are to communicate that a transition is about to happen, explain very briefly what that means, and to advise of company norms regarding gender transition. This clues the supervisor into the fact that this is a controlled process, that HR is in control, and that the work is not going to be disrupted. This minimizes the supervisor's concern that heroic action on his or her part is necessary to avoid chaos.
  • Step 3: Meet with employee in transition and supervisory management together to complete transition plan.
The purpose of this meeting is to fill in the blanks in the draft transition plan previously given to the participants. The mediator will already be aware of their thoughts on the issues, and can highlight the areas that need to be negotiated. I'll discuss the details in a later post.
  • Step 4: Set up guidelines review session for co-workers in frequent workplace contact with employee in transition to explain Company policies and expectations with regard to gender transition on the job. The scheduling and notification of this meeting should not take place until the transition plan is signed by the employee and management.
This is extremely tricky because it can easily turn into a referendum on the employee's life choices, or exacerbate the co-worker concerns because it attempts to convince them that "transgender is good." This is why I have called it a "guidelines review session." It is designed to explain gender transition briefly, to communicate the company's guidelines, and what to expect in regard to this particular workplace transition.

These four steps can easily be placed into a procedure document available to HR or Global Diversity in case of gender transition. It represents a form of institutional knowledge about how to handle gender transition on-the-job that is both flexible and normative. It provides certainty to the parties without creating collateral damage. However, it does presume that the HR person handling these meetings has some facility with mediation processes and transgender issues, and that the company has created policies supporting a draft transition plan.


madison50 said...

Dr. Weiss,

These articles could not have come at a better time. I have been tasked to create a corporate policy draft for dealing with transgender employees and these specific set of suggestions.

Thank you so much!

madison50 said...

Shoot. My sentence received unintended editing. The last sentence SHOULD have read:

I have been tasked to create a corporate policy draft for dealing with transgender employees and these specific set of suggestions have been helpful beyond compare.

Better? (Sorry for the misfire.)