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.                                  

Zero Tolerance is a Mistake

Once you state that your policy is “zero tolerance” you are forced to fire or expel anyone who behaves in the way you have defined as unacceptable.  

You might recall the case of the little boy in kindergarten who kissed a little girl on the cheek and was expelled because of the school’s sexual harassment policy.  A kindergarten little boy – sexual harassment – really? 

Or the case of a child inadvertently taking his mother’s lunch bag.  She discovered the mistake shortly after he left for school and called the school explaining the mistake.  BUT, since Mother had a paring knife and an apple in the bag, her son was expelled for carrying a weapon. 

Zero Tolerance sounds good – but what happens to a valuable member of a club when he tells an off-color joke?  Should he be expelled from the club.  That is what zero tolerance demands.  Is that really what you want? 

It seems to me that what you want is to stop inappropriate behavior.  The dirty-joke teller needs to be counseled never to do it again.  If it is repeated he needs to have some sanctions, possibly a suspension or a fine – but expelling a valuable member of the club from the club is too harsh. 

Now, I hasten to add – I am not talking about sexual abuse.  I’m talking about minor infractions such as “dirty words” or off-color jokes.  Anyone that physically harms another person doesn’t deserve to be in my club.

Ayn Rand often said:  “My rights end at the bridge of your nose.”  I like that quote

Rules, rules and more rules

I don’t mean to get political, but it seems to me we make too many rules, have too many regulations, and too much unnecessary red tape – almost everywhere.  Let me give you some recent examples that have nothing to do with politics per se.

·       I sit on a board of 7 members.  Our leadership insists the secretary take an oral role call at meetings.  She can see us and we can see each other.  When I suggested it was not necessary in so small a group, I was shot down.  We also need to formally vote on unimportant items instead of just having a consensus.

·       One of the organizations I belong to is holding its annual auction fundraiser. There are so many rules all starting with “this is the way we do it because this is the way we have always done it”.   We are a group of about 35 people.  We all know each other.  Yet, there is a rule that items cannot be counted in the tally until they are in the hands of the assigned committee member.  This means that when you say you have something in your hand and will bring it to the next meeting, you are told it will not go into the tally because it’s not physically there yet.  When I asked about trust, I was told that sometime in the distant past, someone said they had something, but didn’t.  So we are all distrusted – a rule is made because of one irresponsible person.

When I streamline systems for my larger clients (big companies – government agencies) I often find that a rule has been made – which often winds up costing more than it is attempting to save – because once someone fraudulently took advantage of their position and stole something, or spent something they shouldn’t have spent.  In other words, make a whole procedure costing lots of money to prevent the loss of some pennies.

Watching “Blue Bloods” on TV Friday night reminded me of all the “zero tolerance” rules in schools.  Do you remember:

·       A kindergarten boy was suspended because he kissed a little girl on the cheek – this was considered sexual harassment (yes, I don’t make these things up!)

·       A young boy was suspended – or expelled (I don’t remember which) because he accidently took his mother’s lunch bag instead of his own and she had an apple and paring knife in her bag.  The fact that the mother immediately recognized the accident and called the school to tell them the details didn’t change their decision.  Off with his head (said the Witch in Alice in Wonderland.)

Have we become so intolerant we can’t handle accidents?  “Oops, it was an accident, sorry – won’t do it again.”  If said genuinely, why isn’t that enough?

Freedom is not worth having if it does not include the freedom to make mistakes.
Freedom is not worth having if it does not connote freedom to err.  It passes my comprehension how human beings, be they ever so experienced and able, can delight in depriving other human beings of that precious right.
Mahatma Gandhi

Have we become so fearful of the crooks that we spend thousands of dollars and countless unnecessary time plugging up the imaginary holes?  OK – I am not suggesting we throw caution to the winds.  I am perfectly content with all those cameras – they found the bombers, didn’t they?

I love streamlining systems for my clients – I work with them – not at them – and together we find ways to make things far more effective and efficient without losing any safety or security.  Oftentimes the K.I.S.S. method works best.