May 28th, 2010

Forbes: NY anti-bullying law a big bad idea


Read the May 28, 2010 Forbes.com article
New York Anti-Bullying Law A Big Bad Idea by Victoria Pynchon

WBI counters the distortions

In the Pynchon (Forbes) article: She is right that IIED (emotional distress) claims should work for bullied targets, but the reality is that courts consider no level of misconduct by anyone at work in the U.S. as “outrageous” as required by the current law. Suffolk Law Professor David Yamada covered the inadequacies and the shortcomings of US courts in his seminal Georgetown Law Journal article in 2000. Anyone can download his writings by visiting this site. Her second point is that employers can and should handle this. We agree. Truth is, they don’t. Pynchon, the mediator, believes employers naturally do the right and rational thing. She’s not heard of ingratiation, though she does fashion herself as an amateur social psychologist. Serving corporate masters can blind a person to reality. Finally, she doesn’t really comprehend severe bullying. It is violence and violence is not subject to mediation!

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  • http://negotiationlawblog.com Vickie Pynchon

    Thanks for the thoughtful reading of my piece. As a dispute resolution neutral, I don’t serve any “master” other than, perhaps, the “deal.” I am not suggesting that workplace bullying is not a problem. What I am suggesting is that more after-the-fact litigation is not an effective or efficient solution to the problem.

    As I suggested to another commenter on the Forbes Legal Blog:

    “Imagine if the New York Senate authorized funding for [the commenter's proposed] “multi-disciplinary, systemic approach to creating and supporting civility in the workplace” rather than authorizing the nation’s lawyers to help bullied employees sue their employers after the fact.

    “Law makers LOVE the purported cure but hate prevention. As I’ve found in my post-litigation career, there is always far more money in war than there is in peace and far more public support for punishment than for intervention.”

    I spent 25-years in the legal rights and remedies business and I do not believe it offers the panacea that cause-of-action creators suggest that it might. It is an adversarial, take-no-prisoners, black/white, win/lose process which grinds down individual plaintiffs, placing far too much of the available dollars for the “remedy” in the hands of attorneys. Listen, we attorneys KNOW we’re inefficient but we do our best. Now that I’m mediating for a living, however, I see even more of the damage to both the justice system and the people whose injuries are processed by it.

    I don’t think anyone’s “corporate master” would support legislation funding mandatory workplace programs to prevent bullying, nor would they much like my other repeated proposal that we craft a comprehensive nationwide Uniform Employment Code to replace the checker-board of protections that are now available only for particular classes of people under particular circumstances.

    The workplace is being re-invented every day in America. We have yet to grapple with the loss of protections previously provided by unions and other employment protections like tenure. The “at will” status of most of the nation’s workforce, coupled with the movement from full-time to part-time status of so many employees, coupled with cut-backs in benefits, such as health insurance, are all at crisis dimensions.

    Litigation is cumbersome, expensive, and “just” on extremely rare occasions. Lawyers’ inability to predict success (and the amount of damages a jury might award if they are successful) results in grudging and inadequate settlements which only increase the sense of helpless bafflement most people in the justice system feel.

    The other drawback of litigation as a solution to workplace bullying is the fact that it will almost certainly sever the employment relationship if the employee has not already quit or been terminated. Litigation is too little of a remedy far too late. We’re I an anti-bullying proponent, I’d worry that legislators would believe their anti-bullying work was done once they create the right in the hapless employee to find a lawyer willing to take their case and brave enough to jump out the window of existing employment into joblessness for a chance at a non-existent brass ring of “justice.”

    Another obvious, and glaring, problem, is the fact that so many employees are presented with “take it or leave it” arbitration contracts which diverts them from a system that has — over the past 30 years – come to reflect the country’s diversity, and into a system of private judging overwhelmingly populated with white men over the age of sixty.

    Thanks for joining the conversation! We have far more in common than you’d think.

    All my best for the continued success of your work,

    Vickie Pynchon

  • http://negotiationlawblog.com Vickie Pynchon

    Here’s (hopefully) my last comment.

    I know that many people do not believe mediation to be an appropriate means of dealing with bullying. I don’t agree with that position – but I do not dismiss it out of hand and acknowledge that many mediators are incapable of facilitating the conversation necessary for a favorable resolution.

    Litigation, however, does not avoid mediation – it all but assures it. And it assures mediation in a context where the rights and interests of the employee are complicated by his/her attorneys self-interest in avoiding trial and earning his/her contingency fee.

    Let me just say that you wouldn’t want to watch the sausage of justice being made either in Court or in its inevitable conclusion in a mediated settlement conference where the employee is often more marginalized and silenced than he/she would be were there, for instance, available Omsbud programs; a mediation program such as that available to postal workers; or, (an EXTREMELY unlikely thought for a corporate tool)a proceeding in which workers are represented by a union.

    Best,

    Vickie

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