Wednesday, 26 August 2015 18:32

Don’t ‘Manage’ Work Place Disputes — Resolve them with Mediation

Written by Mark Stein

Conflict Resolution

The standard line in management theory regarding conflict in the work place is, “Conflict is inevitable. It’s always with us.” Although certainly true, the consequence seems to be a passive acceptance of an unnecessary level of conflict within the workplace and a lack of concerted effort to reduce it.

Indeed, most human resource managers, general managers and supervisors have not been exposed to the techniques of mediation through course work or seminars. There are now masters- and doctoral-level programs in conflict resolution across the country, but these programs are typically attended only by those seeking a career in the field.

Mediation is the primary conflict resolution tool used in the workplace due to the win-win nature of the process, and it will be our primary focus, but let’s briefly define the four major conflict resolution methods, since they often can be confusing for many people.

The Four Major Conflict Resolution Methods
Negotiation: When two or more people attempt to resolve their dispute directly between themselves, this is referred to as negotiation. In most instances, they seek to find a mutually agreeable resolution to the conflict.

Mediation: If disputing parties cannot resolve their conflict directly between themselves, the next step should be mediation. Mediation is a voluntary, confidential process that provides a neutral third party to assist the parties in reaching a mutually agreeable resolution to the dispute. The process is successful between 50 to 95 percent of the time, depending on the mediation model being employed.

Arbitration: Historically, many contracts have included mandatory arbitration clauses. Arbitration is a process that provides a neutral third party or panel to render a decision in a dispute. The parties present their cases and a binding decision is rendered by the arbitrator(s). Attorneys may be present in arbitration to represent their clients, but are not required in most circumstances. Arbitration always yields a resolution, since the neutral party is empowered to render a binding decision.

Litigation: When arbitration is not mandated by contract, and if mediation is not successful, litigation becomes the backup conflict resolution method. Always directed by attorneys in front of a judge or jury (except for smaller dollar values in small claims courts), litigation produces an outcome at some point in time. The litigation process may involve discovery, depositions and other legal procedures as it winds towards trial.

The Four Primary Approaches in Mediation
Over the past 30 years or so, the field of mediation has matured to the point that four major approaches have emerged, each with their own rates of success.

The problem-solving approach: In this mediation approach, after ground rules are agreed to, each side states the facts of the situation. Next, possible solutions are brainstormed and listed, and the parties choose the most desirable solution from the list. This process is successful between 70-75 percent of the time.

The transformative approach: The transformative approach places more emphasis on encouraging the parties to communicate and be understood rather than on resolution. Oftentimes the parties simply leave with a better understanding of the others’ point of view. Perhaps not surprisingly, this method does not have a high success rate, given the lack of importance placed on resolution.

The automatic caucus method: This approach is usually used by attorneys and retired judges in what is called mediation, but could be more accurately characterized as neutral opinion or non-binding arbitration. In this process, almost always accompanied by attorneys representing their clients, the attorneys make an opening statement and the neutral separates the parties and attempts to hammer out a resolution. The attorney/ retired judge mediator focuses on what he/she thinks a judge or jury would decide and attempts to press the parties to agree to such a resolution. The process is successful between 50 to 75 percent of the time when employed.

The expressive model: In short, the session begins with the mediator explaining his/her role as a neutral facilitator in the process without the authority to render a decision. The parties are then asked to agree upon a set of ground rules to ensure it is held in a respectful manner.

The mediator then guides the parties in a process that moves from a thorough examination of the facts through a mutually agreeable resolution with attention paid to the effect the dispute has had on the parties.

Due to the deliberate steps examining the dispute, the exploration of the underlying emotional impact of the dispute on the parties, and the non-coercive nature of the approach, this method is successful between 90-95% of the time when parties agree to participate.

What are the benefits of mediation?
Mediation offers companies and disputing employees a fast, positive, cooperative, cost-effective method for resolving most work place disputes. Often, mediation can be completed for less than the cost of fully explaining and documenting a dispute to an employment lawyer. The legal system is inappropriate and unprepared to deal with certain types of disputes that do not have legal issues at the root of the problem.

What Types of Work Place Disputes are Appropriate for Mediation?
Interpersonal disputes: The most prevalent type of dispute in the employment setting is interpersonal disputes. These occur between two or more co-workers and sometimes extend through entire departments and between departments. Although usually less severe than other types of disputes that will be discussed below, these interpersonal disputes are probably the most costly for companies in terms of lost productivity. Interpersonal disputes usually start small and between relatively few workers. But they can quickly and pervasively spread throughout departments and entire organizations, sapping the positive energy and direction of a company.

Depending on the number of workers involved and the length of time the issues have been festering, these disputes can be totally resolved with a 95-percent success rate (using the expressive model above) in between 1/2 day and a full day. Sometimes, a several hour follow up is scheduled if the resolution seems somewhat tentative to get the parties together a week or two later to ensure that a successful resolution has taken place.

Manager/employee disputes: The above interpersonal disputes assumed that the conflicting co-workers were of equal rank or status within the organization. Sometimes disputes arise between supervisors and line level employees that are also destructive in terms of morale and productivity. Typically, these situations arise when managers are promoted from the internal ranks and are promoted primarily due to their technical or subject matter expertise. Although promoting from within has positive results in many cases, sometimes these internally promoted managers lack people management skills. In such cases or when managers employ abusive tactics, their employees begin to chafe and push back.

Mediation can be an especially effective intervention to directly inform a supervisor of the way he/she is perceived by staff, rather than have an HR manager try to speak for the employees. The mediation process provides a forum for the direct, yet structured discussion of employee grievances concerning abusive management tactics and offers the parties an opportunity to change the situation and the behavior of the supervisor as well as securing some changes on the part of the employees. The expressive model is again superior in terms of success rates due to its direct and participatory approach.

Discrimination Issues: Unfortunately, discrimination claims are not a thing of the past in modern work places. Although not as overt or pervasive as in decades past, incidents of discrimination based on race, gender, age, religion and sexual orientation continue to occur.

Mediation offers a particularly valuable forum for the resolution of these types of disputes. Always offered as a voluntary, confidential option (indeed, one of the important features of employment mediation is confidentiality, which will be discussed in a separate section below) the expressive mediation model offers parties complaining of discrimination the opportunity to meet directly with the person they believe is discriminating against them. The process gives both the chance to speak directly and honestly to each other to clear up any misunderstandings, face-to-face. Questions can be answered and both parties can be free to candidly let the other one know of the emotional effects of the incidents involved. In the confidential setting of mediation, apologies can be given and accepted for behavior that may have been interpreted as offensive, without worry that the apology will be used as ammunition for punitive sanctions.

If resolutions can be reached by the individuals themselves, the matter can be totally resolved. If an employee complaining of discrimination believes he/she is being systematically discriminated against by a department or the company itself, a representative of the department or company can meet with the aggrieved employee to attempt to find a broad resolution to the dispute. Mediation offers a quicker, less expensive alternative to lengthy litigation or EEOC administrative procedures.

Disputes surrounding policies and procedures:
Occasionally, an employee exposes a controversial, outdated, or even illegitimate policy by filing a complaint. Although sometimes these complaints are without merit, sometimes they expose a weakness in current policy that had not been previously discussed.

Mediation can offer a positive, progressive, face-saving way for companies to review outdated policies by having an HR or management representative meet with an employee or a group of employees to discuss the policy matter in question. Such a meeting can result in repeal of an old policy or a modification that would be acceptable to all parties and the company workforce as a whole. The use of mediation can signal a willingness of management to be open and receptive to employee policy questions and complaints.

Board or senior executive level disputes: Quite often, board members or senior executives can come to loggerheads over company direction or tactics. Rather than spilling out into the public domain, such critical disputes can be resolved confidentially and quickly using mediation. Usually, such disputes result from ongoing communication failures or a failure to candidly and directly deal with differences between key actors. Mediation bridges the communication gulf with open, honest, yet confidential discussions between the key actors and can heal serious rifts on the board and senior executive levels.

Important Considerations in Employment Mediation

Voluntary:
Among the most important prerequisites for setting up a successful mediation is ensuring that participation is voluntary on the part of the employees. Forcing or overtly coercing an employee to participate in mediation can at worst trigger legal action and at the very least sets a negative stage or atmosphere for any impending mediation session. Mediation works best when participants have a choice of whether or not to participate.

"Mediation is a voluntary, confidential process that provides a neutral third party to assist the parties in reaching a mutually agreeable resolution to the dispute."

Indeed, the mere referral or suggestion that an employee participate in mediation by an HR representative, manager, supervisor, or especially a chief executive comes with some level of implied pressure to participate. All employees want to please their supervisors and superiors. Making mediation voluntary reduces pushback, lawsuits over coercive tactics, and sets the stage for a positive outcome in mediation. Confidential: There is legal precedent in civil law in all states that protects confidentiality and prevents discovery of discussions held in an effort at negotiation and compromise. This precedent applies to protect what participants say during mediation so that their words cannot be used against them in court.

Companies need to honor this principle to ensure the integrity of the mediation process by not pressuring parties or the mediator to disclose what is discussed in mediation. Future participants will be discouraged from participating if word gets out that confidentiality of mediation sessions have been breached. The only public record resulting from a mediation should be a signed agreement of the participants delivered to the referring party, This agreement can be placed in the personnel files of participants to signal agreement and a pledge of adherence to mutually agreeable terms.

Mediation as an option, not a right: Employers should take care to offer mediation as a tool and opportunity under certain appropriate circumstances. Employees should not get the impression that participation in mediation is a “right” afforded them under any circumstances. The exception to this could be if a company or organization decides to insert mediation into the grievance policy for certain events and infractions. Many employers are adding mediation for certain types of issues such as non-compete clauses and for certain lower level employment disputes.

A comprehensive internal mediation program can yield substantial results in terms of creating a positive work place environment. But care needs to be given to define the types of disputes that can be referred into the program and to avoid creating a blanket “right” to mediation that can tie management and HR’s hands to the detriment of the organization and workplace.

Can HR Managers, Managers and Supervisors Mediate?
Fortunately, the basic skills of conflict resolution, specifically mediation, which is the primary tool of the trade, are easy to acquire. A comprehensive introductory mediation training can be accomplished in one day, giving the basics of the process and some hands on experience through role play and discussion. Such a training should prepare managers to mediate lower level interpersonal disputes between a few disputing employees.

When Should HR Managers, Managers and Supervisors Not Mediate?
For complex issues or multi-party disputes, experienced, professional mediators should be brought in to mediate. Additionally, when one or more of the parties does not trust the manager to be neutral or if the employee has been dismissed, an outside mediator should be secured.

Mark Stein is the President of Mediation First and is the co-author of “Resolving Conflict Once and For All” Harmony House, 1997. Mark can be contacted at mstein@mediationfirst.com

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