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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.

Tuesday, August 8, 2006

Step 3: The Employee-Supervisor Mediation

Previously, I blogged about a four-step mediation process to be initiated upon notice to the organization that an employee is going to transition. Today, I will discuss the third step: the employee-supervisor mediation.

At the previous meetings, the employee and the supervisor(s) received a copy of the draft transition plan, with a request to review and make comments to you, the GTL (HR manager in the role of gender transition leader). When you receive comments from employee and management, you should determine the issues of potential conflict, and sound out the employee and manager to see how much flexibility they have on these points.

Prior to the mediation meeting, fill in the draft transition plan to the best of your ability and forward to both employee and management. Give them time to make further comments, which should be forwarded to you (GTL) only. Remind them to send their comments without a cc and outside of the prying eyes of assistants to avoid breach of confidentiality. This mediation will reduce the time, effort and energy required to finalize the plan. Direct negotiation between employee and managers on this sensitive subject without a mediator may result in unintended conflict and hardening of positions.

Schedule a meeting, with both the employee and supervisory management present, to discuss the transition plan. At the meeting, hand out a list of points of agreement and points of disagreement, and note that you expect that both parties will make some compromises. It may be useful to ask which of the points of disagreement are most important to each party. You can also suggest appropriate compromises in mediating the discussion. Make notes of the items agreed at the meeting and send a follow up email to each of the participants afterwards to ensure these were correctly noted. Make sure to ask if there are any questions or concerns other than those discussed regarding the transition plan.

If agreement cannot be reached on all points after a reasonable time in this meeting, schedule a later meeting and request participants to think about possible resolutions. Ultimately, if agreement cannot be reached after reasonable attempts, you should be ready to make the decision and to back up your decision with reasons that will fly with higher management.

Employee and manager should receive a copy of the completed and signed transition agreement. The manager should be reminded that he or she has a duty to keep the information contained therein confidential. This is important because it will prevent either employee or manager from making changes not vetted by HR. This tends to happen when the parties don't have anything in writing to refer to.

In addition, if the employee is transferred to another location, the agreement can be used, if appropriate, to introduce the new location to the company policy without having to re-negotiate from scratch. The draft agreement should indicate that employee transfer requires notification of the GTL while the transition agreement is in place, so that the GTL can determine what, if any, discussions with new management and co-workers should take place. The agreement should also contain a one-year termination date, with the option to the GTL to continue it for another year. After a year, it may be that no one will be able to tell that the worker has transitioned from gender to another, making a dog-and-pony show at the new location more harmful than helpful. Alternatively, the worker may be in a place where some intervention by the GTL would be helpful, and it may be necessary to modify the plan because of differences in the new environment.

In my next post on these issues, I will discuss the most difficult part of the transition plan mediation: facilities usage criteria.

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