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Introduction
This presentation will raise some of the issues
and dilemmas faced by mediators when attempting to resolve disputes
in a workplace setting. I have been asked, to present, and the
program states that I will be presenting, a "conversation".
Since I am unfamiliar with this format, I looked up the Macquarie
Dictionary, which states a conversation as an informal
interchange of thought by spoken words.
So, I plan for the next 30 minutes to be an
interactive process. I will briefly set the scene, discuss workplace
conflict, and then use examples to raise issues and challenges, that
need to be considered when attempting to resolve disputes in the
workplace, do that they can form the conversation.
The issues are:
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the importance of establishing the framework of
processes and ground rules before mediation can commence
-
the relationship between the mediator and the
organisation, including feedback
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the dilemma of how far the mediator can push the
parties in order to reach a resolution
Workplace Conflict and Mediation
Conflict is a part of all human interactions. The
workplace brings people together and conflict is therefore part of
the life of an organisation as people interact (Boulding 1972:399).
Some conflicts or disputes which reach the attention of the public
or media include strikes, dismissals, cut backs and workers
compensation. However there are many other conflicts within the
workplace that rarely become public, that do not necessarily involve
outside parties, and for which there may be no formal conflict
resolution procedures.
Workplaces are organisations that are highly
structured and may be viewed as networks of groups and individuals
where conflicts occur, usually due to poor communications,
misunderstandings, and confused expectations, roles,
responsibilities and management styles. Cloke and Goldsmith
(2000:xii), in their book Resolving Conflicts at Work,
suggest that managers "face conflicts on a daily basis, spending
as much as 80 to 90 percent of their time trying to resolve or
contain them". Often managers will state that "10 percent of
their employees, clients and customers" take most of all their
energy (Dicker 2001:5).
In a review of a new book Mediation in the
Workplace Jane Weinstein, states that problems arise as employees do
not express their angry feelings and emotions, often hiding and
suppressing them.
Work environments bring together employees who
are diverse and different, therefore it is not surprising that "conflict
is a natural result of those differences as well as the changing
environment in which people work" (Dicker 2001:5). Many
organisations are aware of difficulties and costs that arise from
not addressing disputes. The psychological consequences have been
shown, in a recent International Labour Organisation report
surveying five overseas countries, to be stress, burnout and
depression affecting one in 10 employees (Howard 2001:14). As we all
know it is often within this arena that an outside independent
service is called upon to assist in helping to minimise stress and
distress and to stop possible escalation of workplace disputes. This
involves mediation.
Wall and Lyn (1993:6) explain that mediation
comes from the Latin word "mediare", which means to halve. The
Australian National Alternative Dispute Resolution Advisory
Committee’s (NADRAC, 1997) definition of mediation is:
Mediation is a process in which parties to a
dispute, with the assistance of a neutral third party (the mediator), identify
disputed issues, develop options, consider alternatives and
endeavour to reach an agreement. The mediator has no advisory or
determinative role in regard to the content of the dispute or the
outcome of its resolution, but may advise on or determine the process of
mediation whereby resolution is attempted.
Professor Jennifer David states that "the
conciliatory Alternative Dispute Resolution style is remedial. It is
not about winning or losing but about what is necessary to
ameliorate the situation - to resolve the problem and seek to
restore the relationship to its former condition, or if that is not
possible, to agree on a solution all parties can accept" (David nd).
Boulle (1996:65) sees mediation as a process whereby "parties in
conflict can attempt, either on their own, or with varying degrees
of assistance, to negotiate their way to an agreed settlement. This
option operates at the level of interests, and the negotiations
attempt to advance and reconcile the parties’ interests as far as
possible."
The presentation will now open for "conversation"
a number of issues, challenges and dilemmas
conflict resolvers may face in attempting to mediate workplace
conflict.
1. Establishing the process
Some months ago I attended a short workshop with
Jennifer David and Alysoun Boyle, two experts in the field of
mediation in Australia. They highlighted that the success in
mediation depends on thorough preparation and quoted Heliodorus (3rd
Century AD) "Great deeds need great preparation". A number of
writers have referred to the importance of establishing some form of
"intake procedure" as a means of "screening for suitability"
and obtaining the parties’ "commitment to mediation." (Boulle
1996:92, Charlton and Dewdney 119:184).
I would be interested in your comments
about what preliminary steps and information you have found useful
before mediation?
Thank you for those thoughts; these are some of
the steps I take into consideration:
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obtaining relevant and appropriate referral
information from the organisation
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ensuring the parties understand the mediation
process
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assessing the suitability of the matter for
mediation
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establishing the parties willingness to commit to
the process
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discussing with the parties the need for support
person(s) during the process
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establishing the procedure and process
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advising the parties the role of the mediator
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outlining the confidentiality of the procedure
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formulating an agreement procedure
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establishing the feedback process to the
organisation
The organisation I work for is CRS Australia,
which is a national organisation that assists people with injury or
disability to find employment. In South Australia, a few of my
colleagues and myself have extended our skills and become qualified
mediators. This is due to the shift in the number of requests for
assistance in resolving workplace conflict.
The workplace mediation I undertake is usually
referred to me by organisations that have two or more parties who
come to mediation on a voluntary basis. Since this initiation is by
a non disputing party, I find myself thinking about how much or how
little information I need to collect, as assumptions and perceptions
can be gained before the starting process. At times I would either
speak to or write to the disputing parties providing them with the
same information about my role, training and experience, and about
how the process works. I have also found it valuable where a manager
refers staff to mediation to have the manager attend the initial
exploratory interview so that he or she may explain the purpose of
referring both parties and the expectations of the outcome the
manager is looking for.
Following on these comments I would like to
present a case example and obtain your comments about the issue I
found myself dealing with.
Case Example
The CEO of an organisation referred two staff for
mediation. One staff member was junior to other, and the latter was
the person responsible for their professional leadership. Before
meeting all parties, I established from the CEO that the parties
were willing to resolve their differences but that previous attempts
to resolve the dispute had failed. I suggested to the CEO that the
junior staff member may wish to consider having a support person
during the process. No formal correspondence was exchanged before
meeting all parties. At the first meeting, the CEO attended during
the introductions, explanation of the process and procedures and
setting of the ground rules. The CEO outlined his understanding of
the present need to call in an outside 3rd party and his wish to
maintain two very valuable staff each with their own skills. He
wanted the matter resolved and looked forward to obtaining a
positive outcome. The support person saw her role as supporting the
junior staff member and reporting to an outside union body how the
process went.
I wonder how you would respond to this.
The outcome was extremely positive. I was able to
use the opportunity to negotiate with the support person that the
role of support person and representative of the union was not
appropriate in this confidential process. I made it clear that none
of the information discussed during the sessions could be used in
any other grievance, dispute or workers compensation process. Since
establishing agreements occurs from the very first meeting, I was
able to negotiate with the support person the first agreement, that
she was able to take back to the union the outcome of the mediation
but none of the content of the sessions. I am pleased to say that
she became very useful during the session and comments after the
session, via the CEO, revealed that she was impressed with the
process and procedure.
2. Feedback to the
organisation
As many referrals in workplace conflict are
received from managers or senior staff, I find it important that
during the preparation stage, clarification is made regarding
whether and what form of reporting is required. I usually provide a
summary of the number of sessions and the outcome of the mediation
process. I would now like to refer to my second case, which raised a
number of issues for me.
Case Example
A Manager of a large section of staff referred
three staff for mediation, as two were having similar difficulties
with their new supervisor. Initially I met with the manager and all
parties together, and then met with the supervisor and each party
separately to deal with the issues. At the initial meeting it was
negotiated, that as mediator I would provide the manager with verbal
comments regarding the number of sessions and outcome of the
mediation. On completion of the mediation ongoing issues remained in
the department which were outside the scope of the mediation. I was
contacted some weeks later by the organisation to comment on the
manager’s report, which stated that, the mediation process and
referral for mediation was an agreed first step to a grievance
procedure for the supervisor. This had not been discussed by the
manager as a reason for the referral. I would not have agreed to
mediate this situation if I knew this was part of a grievance
procedure.
I would be interested in what your comments or
response would have been.
This highlighted for me the importance of
negotiating and providing information to the organisation, that this
is done in writing and not verbally, and that all parties have
copies of agreements. In this instance, it may have been important
that I was more formal during the early preparatory stages, and
spent some time in negotiating specific agreements regarding written
feedback. I wrote a report outlining my understanding of the
referral and purpose of mediation. Condliffe (1991:99) states that
written agreements allow the parties to be more "honour-bound"
and abide by the signed copy.
3. The dilemma of the
mediator "pushing" the parties to reach resolution
The use of separate meetings for each party,
as part of the mediation process is seen as useful to:
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understand early in the mediation process any
further concerns or issues for a particular party
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discuss any issues in greater detail
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allow parties to discuss, generate options and
develop negotiation strategies confidentially
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assist parties if they are "stuck",
emotional, feel overwhelmed or lack power
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refocus, deal with feelings
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become empowered to renegotiate
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allow parties or their support persons an
opportunity to express their "bottom line", needs or interests
confidentially
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coach, re-educate, discuss in particular with a
party who is blocking or being destructive to the process
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assist in any settlement discussion
A number of writers (Boulle1996:107, and Charlton
and Dewdney 1995:89) have raised issues and concerns that this
process has the potential to cause difficulties for the mediator.
The mediator could be seen to:
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take sides
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undermine their credibility
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break confidentiality
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pressure the parties to settle
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push solutions
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make decisions
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cause mistrust and suspicion
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engender poor communication
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prevent resolution
Case Example
A team leader and one of his staff agreed to
mediation after years of a long standing entrenched conflict. The
staff member believed that no one had listened to his concerns and
that he had attempted to raise issues in legitimate ways many times.
He felt picked on and was not respected for his level of skill and
ability to manage his position. He saw that the manager always
received support from the broader organisation and was using the
situation to separate him from the rest of the team. The manager
felt unable to get the staff member to do his role and accept the
many changes that had occurred in the organisation. A lengthy
mediation followed. Both parties used private sessions to discuss
their pent up feelings and emotions and final agreement wording.
Eventually agreements were reached but these took a long time to be
signed. The staff member required the wording in the agreement to be
changed many times. Following signing of the agreement and when
other matters pertaining to return to work had been successfully
negotiated outside the mediation by the organisation, the staff
member made a number of complaints, including that the mediator "had
influenced the mediation process and pushed the parties into
agreement". Since the organisation provided the information after
all contact with the parties had concluded, follow up was unable to
be established.
I wonder what your thoughts are on this dilemma.
Charlton and Dewdney (1995:96) discuss "reality
testing parties’ entrenched positions and identifying underlying
needs and interests" before any negotiation of options. They
highlight that end agreements may be based on "entrenched
positions rather than mutual interests". In the above case example
I have questioned whether I had not given the staff member enough
time to express his feelings or an opportunity to look at interests
and consequences of the options generated. Have I been perceived as
taking the side of the organisation or the team leader, or did the
staff member see mediation as a way to encourage the organisation to
"remove" the team leader?
Conclusion
To conclude, resolving conflicts in the
workplace is complex and challenging. Mediation is seen to allow
parties to collaboratively problem solve, and seek creative
solutions to reduce high emotions and feelings in a nonadversarial
environment.
Cloke and Goldsmith (2000:242) view the conflict
resolution process as
"this path of self-discovery, learning and
transformation". They quote William James who wrote the following
at the beginning of the last century:
Most people live, whether physically,
intellectually or morally in a very restricted circle of their
potential being. They make use of a very small portion of their
possible consciousness, and of their soul’s resources in general,
much like a man who, out of his whole bodily organism, should get
into a habit of using and moving only his little finger. Great
emergencies and crises show us how much greater our vital resources
are than we have supposed.
If, as mediators, we are able to draw out of
people in conflict the vital resources they process to resolve their
conflict, then we have earnt our pay.
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