Due Process, Context, Mediation

Due Process and Context

I was watching TV the other night – Blue Bloods – and one of the segments was a clear example of how context matters.  A young woman, apparently on drugs, ran over and killed another youth.  The prosecution, thinking she had been joy-riding, was about to ask for the stiffest penalty possible.  BUT, the young woman’s mother explained that her daughter had not been joy-riding, but that the drugs represented her attempt at self-medicating because she had anxiety, depression and other psychological problems. (This was verified by a reputable psychiatrist.)

Intent is a significant part of how sentencing is determined.  Since the daughter was not joy-riding as originally thought – the prosecution asked for a lenient sentence and counseling/therapy for the girl. 

Context always matters.

Recently a woman was forced out of her association because she was two months late in paying her dues.  The board assumed that she deliberately chose not to pay them.  No one asked her.  The truth is that she had been ill and not earning any money for a while.  It was the very first time she’d ever been late.  The person responsible for working out a payment plan with the woman never even attempted it – no one bothered to talk WITH her they just let her go.

Not only does context matter – so too does due process.

Due process means the person being accused has the right to face their accuser, to know the details of what they allegedly did wrong, and to be able to defend themselves before a final decision – or sentence is delivered. 

Let me give you another example.   I was involved in a case where an executive lost his job because “he should have known” that his staff told dirty jokes.  The investigator in this case was so biased that she pre-determined his guilt.  Later, when I interviewed the executive I learned that he traveled frequently and was thus out of the office.  The alleged dirty jokes apparently occurred when he was not around.  (This was before the latest idea to make “command” responsible for the behavior of their charges.)

Here's another one:   Someone reported over-hearing a sexually inappropriate comment.  The man who was accused to have made the comment was on the verge of being fired.  There had been no attempt to ask him – or the person to whom he made the comment – about the situation.  Fortunately, his manager intervened and called me in to do a thorough and fair investigation.  Interviewing the man and the woman to whom he made the comment, I learned that they were friends and that what he was really asking was “did you make up with your boyfriend?”   He asked because the prior week over lunch she had been crying on his shoulder about a fight she’d had with the boyfriend.,

While I am on this subject – let’s also look at the foolishness of demanding a policy of “zero tolerance.”

• ·       A kindergarten boy kisses a little girl on the cheek.  He is expelled
• ·       A young boy accidently picks up his mother’s lunch bag instead of his own.  She notices it and calls the school to report the mistake.  None the less, because her lunch bag – in his possession – contained an apple and a small paring knife he was suspended for carrying a weapon.
• ·       Two women, thinking they are alone in the restroom at their office talk about their dates the night before – in pretty graphic terms.  Some other woman, who had been in the stalls reported it as creating a hostile work environment.  The women are fired.
• ·       A man making a delivery package in an apartment building knocks on an apartment door just as the next door opens and out comes his wife – with her extra clothes and the partially unclothed man that she had been with.  Reacting in the moment the first man socks the second man.  He has no other history of violence – but his children are (almost) taken away from him in a custody battle.

All too often decisions are made with limited – and sometimes biased – information.  People are harmed whereas they could have been given an opportunity to work something out.  

I am a firm believer in using mediation where ever possible – especially in these workplace he said/ she said accusations of stupid and jerky behaviors that don’t reach the level of a crime. 

I have been mediating disputes among people since the eighties – starting with doing visitation and custody mediation and now mediating problems in the workplace.  I also teach other professionals how to do mediation. 

Oh, and how to do fair and impartial investigations.   Two of the six books I have written and published are due to these activities.  See below.

• Conducting Workplace Investigations:  Designated Investigator  
• Culture:  Inside the Company and Outside the Country            
• Leading and Managing a Global Workforce                                    
• Conflict in the Workplace: Causes and Cures                               .
• The "Please" and "Thank You" of Fundraising for Non-profits.         
• Training Your Board of Directors             

In summary, due process requires looking at all sides of the story – from context to the investigation to the decisions regarding the appropriate sanctions and outcome.  Who gets selected to do the interviewing and investigation is equally as important because all too often people start out with either conscious or unconscious biases.                                  

Teachers attitudes affect students behavior

If we don’t change the attitude of some of our teachers – we will never change the problems some of our students manifest.  Here are a few examples of what bothers me about too many – certainly NOT all – teachers.

I met a woman I knew but hadn’t seen in ages.  She was dressed like a slob – dirty jeans, wrinkled top, tennis shoes.  I knew she was a teacher at an elementary school so I wondered what had happened to have her so poorly dressed and groomed.  I asked her if something was wrong and she replied:  “Who am I to impress they are only kids.”

Years ago as a graduate student one of my course requirements was to mentor a young at-risk child.  My mentee was a shy delightful little Chicana girl.  We would take walks together.  One day she proudly showed me the dress she was wearing and said: “I’ve kept it clean all week and Mommy didn’t have to wash it.”  She was so proud.

A few weeks later I met with her teacher who – among other things she said – told me that she found these students disgusting because they wore the same clothes day after day and she (the teacher) would never allow her child to go to school in the same dress twice in a row.  Her lack of empathy and understanding bothered me tremendously and I’ve never forgotten that story.

Not to long ago,  when visiting my cousin, a k-12 principal in California, I asked “Did you see how that teacher treated that student?”  I was horrified and my tone of voice reflected it.  My cousin replied:  If I so much as comment on it – they file a grievance with the union.  It takes me many hours to prepare for the hearing – and I lose anyway.  I’ve given up.

Recently, I was with a group of highly motivated educators and we were talking about strategies to make their students feel more welcome and safer.  One of the suggestions was to have the teachers stand at an open door welcoming students as they moved from class-room to class-room (period to period).  Much to my chagrin – several teachers responded that “it’s not in my contract.”