[Congressional Record Volume 140, Number 35 (Thursday, March 24, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: March 24, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                         THE DUNLOP COMMISSION

  Mr. DANFORTH. Mr. President, on April 6, 1994, the Commission for the 
Future of Worker/Management Relations, or, as it is more commonly 
known, the Dunlop Commission, will hold hearings to gather information 
so that it can make recommendations on improvements in labor law 
reform. The Commission is headed by former Department of Labor 
Secretary and Harvard professor John Dunlop.
  The Commission, which was formed by Secretaries Reich and Brown, has 
been asked to provide answers to three questions. On April 6 it will 
hear testimony regarding the following question: What (if anything) 
should be done to increase the extent to which work-place problems are 
directly resolved by the parties themselves, rather than through 
recourse to State and Federal courts and Government regulatory bodies?
  A measure which I introduced in the last Congress and intend to 
reintroduce upon our return from the upcoming recess directly addresses 
this question. This measure, the Employment Dispute Resolution Act, is 
designed to provide an alternative to litigating employment 
discrimination claims. When I first introduced this measure in 1992, it 
was needed to ease the burden on the already overloaded court system 
and EEOC. Since that time, the plight of the courts and the EEOC has 
become steadily worse, and the need for this measure has become even 
more desperate.
  As EEOC Chairman Evan Kemp said in 1992:

       Those who turn to the EEOC for relief will be forced to 
     wait nearly three years before the agency can resolve their 
     charges. A woman who files a charge of pregnancy 
     discrimination, for example, will not see the case resolved 
     until her child is in pre-school.
       The practical implications of such a delay are horrendous. 
     They are horrendous not only for the charging party who feels 
     his or her rights have been violated, but for the business 
     charged with the alleged violation. An employer would be 
     faced with the administrative nightmare of producing 
     information to justify actions of three or four years 
     earlier.

  Chairman Kemp's analysis was corroborated just last month by a GAO 
report which reviews the EEOC's methods for investigating and 
litigating discrimination charges. As reported by the GAO, by fiscal 
year 1996, the processing time for a discrimination claim could more 
than double. The GAO concluded that this delay can seriously injure 
complaining parties.
  The situation in the courts is also disaster. The Civil Rights Act of 
1991 added jury trials for compensatory and punitive damages to both 
title VII and the Americans with Disabilities Act. These valuable anti-
discrimination measures are naturally strong incentives to litigate. 
Even before the enactment of these amendments, the number of private 
employment discrimination suits skyrocketed over 2,000 percent between 
1970 and 1990.
  Increasingly, therefore, the courts are not viable as a responsible 
enforcement mechanism. Finally, even if there were no problems of 
overcrowded court dockets and delays, the adversarial nature of a 
prolonged legal battle is so hostile that it overcomes most prospects 
of resuming a productive work relationship after resolution of the 
charge.
  I think there is a better way. It is called mediation. In the Winter 
1991-92 issue of The Journal of Intergroup Relations, a publication of 
The National Association of Human Rights Workers, there is an article 
called ``Mediation of Civil Rights Complaints: Win/Win.'' The author, 
Clark Field, is a human relations specialist in Evansville, IN. He 
explains, simply, accurately and compellingly, why mediation is a 
superior method for resolving employment discrimination claims. I 
agree. I ask that excerpts of Mr. Field's article be printed in the 
Record following my remarks.
  I hold no illusions that mediation will be successful in every case. 
But under my bill, there really is no downside. This legislation does 
not compel parties to mediate in all circumstances. However, where 
either of the parties feels that a settlement can be achieved in 
mediation, then the parties cannot proceed to litigate in the courts 
without first trying to work out their differences in mediation.
  We are all about to head home for a recess, after spending many long 
hours in this chamber debating many diverse policy issues. I know that 
we all look forward to spending time back in our own States and with 
our families. While I recognize that this is not the time to engage in 
a full-blown debate on this legislation, I did want to express my very 
strong sense that the Dunlop Commission should consider a mediation 
model, perhaps similar to the one I introduced on October 5, 1992. The 
original text of my initiative, S. 3356, is in the record of that day.
  I also invite my colleagues to join me next month when I reintroduce 
a slightly modified and improved version of the Employment Dispute 
Resolution Act with, I expect, support from both sides of the aisle.
  There being no objection, the excerpts were ordered to be printed in 
the Record, as follows:

             Mediation of Civil Rights Complaints: Win/Win

                          (By Clark G. Field)


                              introduction

       If you are not familiar with Mediation, let me first define 
     it and describe it as a process. Mediation is the coming 
     together of disputants with an unbiased facilitator (``third 
     party neutral''), who will assist both parties--although 
     there can be more than two disputants--in reaching an 
     agreement. The mediator absolutely makes no decisions, but 
     only facilitates consensus decision-making.
       Mediation is not: compromise, negotiation, arbitration, 
     conciliation, nor striking a deal.
       Mediation is: voluntary, immediate, future oriented, 
     confidential, hard on facts but soft on persons; conducted by 
     an unbiased, trained mediator; and respectful of disputants.
       In a few months, I will have been writing ``VS'' on my 
     letters, questionnaires, fact-finding conference notes, and 
     investigative summaries for eight years. I am a Human 
     Relations Specialist/Investigator for the City of Evansville 
     and Vanderburgh County, Indiana, and I have written that 
     abbreviation ``VS'' thousands of times. Versus means 
     ``against''; it means ``doing battle,'' ``overcoming''--
     ``VS'' means ``win/lose.'' Our society instinctively thinks 
     of suing, forcing, litigating, winning when it comes to 
     disputes.
       When a person comes into our Human Relations office to file 
     a discrimination charge (ninety-five times out of one 
     hundred, it will be in the area of employment), the common 
     procedure is adversarial--only lately am I explaining the 
     mediation option. If both parties should be amendable, we 
     work out an informal resolution and, if the Complainant is 
     found to have made a good case for him/herself (received a 
     ``Probable Cause'' ruling), there is a time set (maybe twenty 
     days) for reconciliation--these efforts I term ``hit and 
     miss'' affairs.
       There is an inherent flaw in our system, in our adversarial 
     approach, and it is this. Typically, when the Complainant 
     ``wins'' his/her case--proves discrimination because of race, 
     sex, color, religion, national origin, age, or handicap--she/
     he will choose not to return to work for the same employer 
     (Respondent). The feeling is that things will not be the 
     same, that he/she will be picked on, or treated worse. Both 
     Respondent and Complainant are reminded that retaliation is 
     illegal, but Complainant still will be afraid to return to 
     the old position. Therefore, we can say that Complainant 
     ``wins the battle, but loses the war.''
       It is my experience that more anger and ill will are 
     generated by race discrimination charges than by any other 
     kind. When the Respondent receives the official charge, e.g., 
     ``John Jones VS. John Doe Corp,'' a combination of feelings 
     erupt in many employers, such as: anger, hostility, fear, 
     hurt, bellicosity, indignation, frustration, embarrassment, 
     defensiveness, vindictiveness, and maybe self-righteousness. 
     More than anything else, whites do not like for blacks to 
     point fingers at them and label them as discriminators and 
     racists. Maybe, back in the recesses of our genetic history, 
     guilt and fear linger as a remnant of slavery.
       Is there a better way? Another route, other than ``VS''? A 
     win/win method of dealing with discrimination charges, where 
     the relationship of employer and employee may be maintained? 
     Maybe so. With Mediation, everyone wins.

                           *   *   *   *   *



                           problematic areas

                      1. The Motivation to Mediate

       My experience has been that Complainant will usually 
     consent to Mediation, while Respondent is much more hesitant. 
     The reasons are pretty obvious, namely: Complainant has a lot 
     to gain, such as an immediate resolution of the complaint and 
     the repairing of the employer/employee relationship, while 
     the Respondent must deal with a number of obstacles, 
     including: fear of the unknown; fear of giving up power; fear 
     of compromising their position; and the traditional 
     dependence on legal counsel in such matters.
       One of the challenges facing the mediator is that of 
     balancing the power. In a Title VII (employment) charge, the 
     power imbalance can be more pronounced than in any other 
     setting--a large corporation facing an unemployed, and 
     sometimes uneducated, ex-employee. But the more employers 
     realize that not only valuable time, energy, and expense can 
     be saved, but also valuable, trained employees can be ``kept 
     on board,'' the more they may choose the Mediation option.
       In some Mediations, both parties, after they are familiar 
     with the ``Rules and Regulations of Mediation,'' are required 
     to sign an agreement ``to begin Mediation.'' This can be an 
     important tool for successful Mediation.

                    2. That Impartiality Be Ensured

       The most important attribute of any mediator is 
     impartiality. If the investigator also serves as the 
     mediator, there may be a conflict of interest should no 
     agreement be mediated. For instance, if one of the 
     participants proves to be very difficult, later this may bias 
     the mediator/investigator.
       In one of my mediations, I realized that Complainant, a 
     white woman, was prejudiced against her black co-workers. She 
     also appeared to have an emotional problem. As the Mediation 
     progressed she backed off, and no agreement was reached. 
     Because of this experience, I felt that she had no legitimate 
     discrimination charge--she was claiming handicap 
     discrimination. As it happened, we went to Mediation before 
     she filed a discrimination charge. Had she later returned to 
     file such a charge, I would have had to refer her to another 
     investigator.
       Generally, the mediator and the investigator should be 
     different persons. In small offices, where there is only one 
     investigator, something would have to be worked out. Where 
     there is only an executive director and a secretary and where 
     the Human Relations Commission does not have the force of 
     law, as is the case in some rural Kentucky offices, Mediation 
     could be extremely expedient, if properly promoted.

                             3. Timeliness

       There is always a time limit, usually well defined, for 
     filing discrimination charges. In Indiana, it is ninety days 
     from the last date of harm for local and state commissions, 
     and usually one hundred and eighty days for the Equal 
     Employment Opportunity Commission (EEOC). Since Mediation is 
     voluntary and unofficial, it is better for Complainant's 
     charge to be filed initially, in order to preserve the 
     timeliness. Then, when Mediation results in an agreement, 
     Complainant can withdraw his/her charge. Otherwise, 
     Complainant's timely filing could be compromised.


                               conclusion

       At a time in the United States when cities and states are 
     experiencing a financial crunch and as we move into 1992, 
     when the Americans with Disabilities Act (ADA) will ``kick 
     in'' for handicapped persons--thus presenting enforcement 
     agencies with perhaps 30 percent more complaints--Mediation 
     can be a very ``timely'' process. With Mediation, the 
     possibilities are almost limitless. It empowers both employer 
     and employee to sit down together and solve their problems--
     this way, both win.
       While we have been focusing on discrimination in employment 
     in this paper, Mediation will serve a similar purpose in 
     other discrimination charges--housing, education, finance, 
     and public accommodations. In housing especially, 
     Complainants need immediate action, and the survey showed 
     that some offices use Mediation exclusively for housing 
     discrimination charges.

                          ____________________