Homer La Rue is a prominent labor and employment mediator and arbitrator, Howard University law professor, and longtime leader in the dispute resolution field. In this episode, Homer tells the story of a full day employment discrimination mediation, where settlement seemed impossible. In the final moments of the session, Homer made one last, risky move: he asked both lawyers to step outside and let their clients speak directly. Homer shares why mediators sometimes need to take calculated risks, step outside conventional approaches, and create space for people to truly hear one another.
In this episode of Stories Mediators Tell, Professor Homer La Rue shares a story about a race discrimination case in which the employee made allegations of microaggressions and unequal access to leadership opportunities. When settlement seemed out of reach, La Rue to a risk and asked the parties to engage in one last conversation without their attorneys present. That final conversation allowed the supervisor to hear the employee’s experience firsthand and changed the outcome of the case. La Rue reflects on the importance of ensuring parties feel heard, the role of empathy and lived experience in mediation, and the need for greater diversity among mediators and other dispute resolution professionals.
Lela Love
Welcome to season two of Stories Mediators Tell. This is Lela Love, and I am here with Robyn Weinstein. Robyn and I are mediators and professors, and we train people to be mediators.
Robyn Weinstein
At this point, most people know about mediation in the context of divorce, but mediation is happening in many contexts. It's happening between nation states, with countries like Qatar and Pakistan, mediating conflict between Israel and Iran or the U.S. It's happening in international businesses or inside a workplace, on construction sites or among school boards, it really can happen in any litigated case. The mediator's job is to work to increase understanding and to help guide the parties towards an outcome that is better than any result achieved through continued conflict.
Lela Love
And why stories? Well, we think stories are the number one educator and connector between human beings, taking us into other cultures, introducing us to new people, and offering religious insights and wisdom of the ages. Stories take us into other worlds altogether, with “Once upon a time,” or “In the beginning,” or “It was a dark and stormy night.” How exciting are stories, and we want to travel with you into new ones. You may recall famous court stories because there are cameras and reporters in courts. Brown v. Board of Education, when separate but equal was on trial, the Scopes Monkey Trial, when evolution and science was on trial, but mediation happens behind closed doors. It's confidential. It's private, and we think a light should be shined on what happens behind those doors, so we can all better understand how mediators promote understanding and resolution, particularly in this era of polarized and often bitter and vicious disputes and conflicts. We're here to shine that light.
Robyn Weinstein
And please note confidentiality. Lela mentioned it, and it's an important part of mediation. For this podcast, the storytellers have either changed the identity of the parties or obtained their permission to tell these stories.
Lela Love
Legendary, indeed, and wonderful Homer La Rue is a member of the faculty of Howard University, where he founded and co-directs the law school's alternative dispute resolution program. He is a prominent labor and employment arbitrator and mediator. He serves on rosters of the American Arbitration Association and the Federal Mediation and Conciliation Service, is a celebrated leader in our field, serving among other things. This is really a short list given all he's done as chair of the American Bar Association Section of Dispute Resolution, president of the National Academy of Arbitrators, and a distinguished fellow in the International Academy of Mediators. He founded the Ray Corollary Initiative, a not-for-profit with the mission of increasing diversity and the selection of neutrals, of arbitrators, mediators, and other dispute resolution providers, and I've got to say, I'm so proud to call him a friend, a super fun, wonderful, lifetime friend, really, and he is here today to tell us a story.
Homer La Rue
Thank you very much, Lela. One of my fond memories of our friendship, our long friendship, is our, my, opportunity to teach with you at Cardozo some years back. I still remember that quite fondly.
When invited to participate, I thought about, do I have a story? And I began to reminisce, and I came up with what I call the story. I entitle it "When Bias Looks Like Feedback: Microaggressions, Leadership Perception, and Promotion Denial."
So here's the story: the mediation room is quiet, and James and his lawyer take their seats. James is a Black civilian employee at the Department of Army procurement unit, currently serving as a supervisor one. Obviously, all the names and units and everything have been changed and are fictitious, but the story is not. Across from James sits the procurement unit director, who is a Black male. His name is Jamal. He is a one-star Army general, retired, and next to him is the agency's legal counsel, Deputy General Counsel Katherine, we'll call her. James's manager Pete, a white supervisor, is not in attendance. I'm present as the mediator, and I ask each side to explain how a promotion decision turned into a conflict.
James begins, and he says he came to mediation because he applied for promotion to supervisor two and was denied. What stayed with James, or it stayed with him most, was Pete's written explanation, which was, “It would not be in the best interest of the service to promote you at this time.”
Now James explains that from his point of view, the denial did not begin with that final memo; it began over the course of a year working under Pete, when patterns started to emerge that affected how James was seen, how he was evaluated, and whether he, James, was given a fair opportunity to show that he was ready for the next level as a supervisor.
So what were some of those patterns that James mentioned? Let me start with questioning leadership.
James pointed out that Pete often gave James feedback, and the feedback that sounded important but was hard to pin down. Pete would say, for example, “James, you need to work on your executive presence,” or “I'm not sure others see you as managerial material,” or “You can be a little intimidating in meetings.”
Now James says that those comments were never tied to any concrete examples, and James noticed that non-Black peers with similar leadership styles were not criticized in the same way. Over time, James says those remarks changed how he carried himself. He became more careful in meetings, less willing to speak up in front of senior leaders, and more hesitant to push for leadership roles, and as that happened, he was given fewer chances to lead special projects. His visibility dropped, and his annual ratings began to decline, even though his core duties had not significantly changed. James says the result was circular.
The same loss of confidence and reduced opportunity that followed the criticism later became part of the reason Pete cited current performance concerns and diminished leadership effectiveness when James's promotion decision was made by Pete.
A second pattern that James noticed was different standards of communication feedback from Pete. When James raised concerns directly, especially about operations or staffing, Pete would describe him as too aggressive, confrontational, or someone who needs to be less emotional. But James says he watched white supervisors speak with the same intensity and be described very differently. They were described as direct or passionate. James explains that this double standard had a real effect on his performance. He started holding back. He avoided raising issues unless absolutely necessary. Pete became less engaged during management discussions and contributed less often because he was trying not to trigger another negative label. Later, Pete documented that James showed decreased participation and initiative. James says that this too felt like a setup. He was criticized when he spoke up, then judged for not speaking up enough. In his view, the communication style Pete disfavored became the basis for saying he was not demonstrating the level of leadership expected of a supervisor too.
The final pattern that James described was his exclusion from development opportunities. James says that the promotion decision cannot be understood without looking at who received growth opportunities. He tells me that Pete routinely assigned high visibility projects, acting assignments, and leadership development opportunities to non-Black supervisors.
When James asked for similar opportunities, Pete would tell him, "You're not quite ready yet. Let's give you more time,” or “You need additional seasoning."
What made that especially frustrating, James says, was that there was never a written development plan. No one clearly explained what he needed to do to become ready. After a year, the predictable result was that he had less experience on major projects, less exposure to higher-level leadership functions, and a record saying he had not demonstrated supervisory two competencies. James tells me that this was the clearest unfairness of all. He was denied the very opportunities necessary to prove himself, and then the absence of those opportunities was used against him as proof that he should not be promoted. James says that none of those incidents, standing alone, may have looked very dramatic, but together, he asserts they created a pattern.
First, his leadership was repeatedly questioned through subjective comments. Second, his comment, his communication style, was judged by a harsher standard. Third, he was excluded from the assignments and development opportunities that would have allowed him to compete fairly for promotion. So, by the time he applied for supervisor two, the record already reflected the effects of those patterns. So, when Pete wrote, it would not be in the best interest of the service to promote James, James did not hear a mutual business judgment. James heard the final step in a process that had already narrowed his opportunities, affected his confidence, and shaped the documentation that was later used to justify the decision.
Now, what was the agency's reaction? Katherine's response on behalf of the agency. She sees the case quite differently. Katherine says that Pete was trying to coach James. That Pete's comments were ordinary management feedback. That assignments were based on readiness, and that the promotion decision reflected performance and operational needs. She says that Pete had no bias intended, and that the decision was made in what Pete believed was the service's best interest. Katherine concludes by saying that she is prepared to file the agency's motion for summary judgment if James does not agree to withdraw his discrimination claim against the agency.
Now, this is the closing frame of my story. The question is not only why James was denied promotion in the final moment, but whether he was given a fair and equal chance to become promotable in the first place, James is asking the agency to look at the full year before the decision, and to see whether subtle workplace microaggressions affected James's evaluations, his visibility, his development, and ultimately his promotion outcome.
And James ends with a simple point. He is not saying that he was entitled to a promotion automatically. He is saying he should have been judged by clear, consistent standards, given the same opportunity to grow as others, and evaluated on his actual performance. Now, as the mediator, we went all day, and by the end of the day, it was clear that the agency was not going to relinquish its position that there was no discrimination here and that it wanted to file the motion for summary judgment. I concluded that we probably were not going to get a settlement that day, but I did want James to leave that mediation thinking that he had been heard, and so I asked counsel for James if he would permit me, if the other side agreed, to allow James, me, and Jamal, the director of the unit, to meet without counsel, so that James could explain to Jamal what how he felt. James's counsel readily agreed. Said, "I trust you. Go ahead." I went into the agency's room and made the same request before the admiral Jamal, the director, gave his consent. His attorney requested that I leave the room so that they could consult before that decision was made. Ultimately, Jamal said, "Yes, I'll meet with James." I brought them into the mediator's room. I told them that the reason for this meeting was that I wanted to make certain that Jamal heard James and what he was saying throughout the mediation, and I gave them an opportunity to talk with one another. I said nothing else during that session. It lasted about 30 minutes, at the end of which, Jamal, the director of the unit, said, "I hear you. We're going to make this right."
The mediation ended quite differently than I thought it would. The parties resolved that the agency would review the discrimination claim, review the facts, and that a different outcome would be forthcoming. And so, in essence, the parties settled the dispute.
One last point: on the way out, Katherine, the general counsel, said in a whispered voice to me, "I'll never let you near one of my clients again.”
That's my story.
Lela Love
Why did you say that? I'm still not clear because you got to the bottom of it, right?
Homer La Rue
She was convinced that the microaggressions did not amount to a workplace discrimination suit claim. That James was denied a promotion, but that was an ordinary in the ordinary course of the way in which things were done, and so there was no workplace impact on him, negative impact on him, and therefore, according to her, there was no basis for discrimination claim.
Lela Love
But you drew it out in such a way that made it clear what the impact of these let's call them small, but they're really not small, things were right.
Homer La Rue
Yeah, I was struck by each of the accounts that James gave, and I wanted to be sure that Jamal was hearing, it occurred to me that Jamal, a one-star general retired, with the name Jamal as his first name, had gone through many of these same microaggressions coming up the leadership ladder in the army. But I also thought that he was being heavily influenced by the legal argument that Katherine was making that these did not amount to legal claims of discrimination, and that's why I wanted to have this one last session. And I didn't think that it was going to settle.
I thought that we would have this last session, and Jamal would say, "I hear you. We don't have a deal."
The other thing that I'll say that was risky here is that I asked both counsel to separate themselves from their clients. Something I had never done. I think up to that time I had never done before, but I thought that it was necessary, and so I took the chance. I was pretty sure that James's counsel would agree. I wasn't so sure that I could get the agreement of the other side.
Lela Love
Well, a theme of ours has been mediating dangerously. There you go.
Robyn Weinstein
How long had you been mediating at the time you did this case? Like, where were you in your career when you felt like, you know what, this is my Hail Mary, I'm going to g for it?
Homer La Rue
I would say I was a pretty mature mediator. I was not a young mediator, if I remember correctly, I was at already at Howard, so I was it was 10 or 15 years of mediating. So I was fairly confident in the basic process, but I knew that this was a dangerous ploy as well.
Robyn Weinstein
And one of the challenges of this job is like you can't win them all, you know, and you have to you have to deal with like letting people go when they're unhappy or things don't settle. But how did you feel after Katherine made that comment to you? Like I'll never let a client near you again. How did you leave that mediation yourself?
Homer La Rue
As a matter of fact, I've told this story to a number of classes when I have taught mediation and taught mediation to law students who were going to be representing clients, and I've told this story as to remind them of their role that Katherine was bent on winning, and that's not always the lawyer's role, and it's certainly not the always lawyer's role in a mediation. So, to answer your question, I smiled to myself, and I think I put away in my head, this is a teaching moment.
Robyn Weinstein
One of the things that you've spent a lot of your career on is helping to develop like the next generation of neutrals and really thinking about increasing diversity in the field and making sure there are mediators out there that can help litigants from all backgrounds. In this case, it sounds like for you, having an understanding of the parties and their lived experience was important. Do you want to talk about that at all?
Homer La Rue
Yeah, I think that is terribly important. And it's not to say, as I always emphasize, it's not to say that a mediator who was not Black could not have done the same thing that I did. My point is, let's ensure that we have all of that experience and that we're using all of that talent, and that's why I push so hard for us to have a diversity of neutrals from whom the parties can select, because as you point out, Robyn, there are many life experiences, and I think that this process of private dispute resolution works only if we're utilizing all of the available talent, so that we increase the possibility that the parties can hear one another, can participate meaningfully, and can develop then the options for resolving their dispute, and I think that's just terribly, terribly important. And I think that it means that if we don't do it, we run the risk of our private dispute resolution process being deemed illegitimate because what's the implicit message? It's that only a certain demographic can do these cases, and that's the wrong message.
Robyn Weinstein
I think that's an amazing place to leave off, and we just thank you so much, Homer, for coming on the podcast and sharing a story, a great story. Lela, any final words?
Lela Love
No, just another good time with Homer LaRue. That's my salvation of this, and I hope to see you really soon somewhere else.
Homer La Rue
I look forward to it as well, Lela. And thank you both for the invitation and for the opportunity to share
Robyn Weinstein
Thank you for joining us for this episode of Stories Mediators Tell.
Lela Love
Whether you are listening as someone involved in a conflict, or as a mediator, or an advocate, or just because you're curious, we hope you will take away from this story and others featured on this podcast, that great things are possible in mediation, and when people sit down to talk and work things out.
Robyn Weinstein
If you'd like to hear more stories and conversations like this one, be sure to follow the podcast and explore additional stories in the Stories Mediators Tell books.
Lela Love
I'm Lela Love
Robyn Weinstein
and I'm Robin Weinstein. Thanks for listening, and we look forward to being with you next time on Stories Mediators Tell.
Lela Love
Opening a window into the magic of mediation.