MEDIATION TO MANAGE CONFLICTS IN THE WORKPLACE by Patty J. Tash City of Rocklin

Transcription

1 MEDIATION TO MANAGE CONFLICTS IN THE WORKPLACE by Patty J. Tash City of Rocklin INTRODUCTION Historically, we in the Human Resources field have had limited exposure to the mediation process; and normally this exposure occurs under negative circumstances. For example, mediation is often introduced during the labor negotiations process when talks have stalled and impasse has been declared. After months of hard fought negotiations, the parties are at a stalemate and their emotions are heightened. The parties have become resigned to the fact that the only way they can salvage the process is to bring in a neutral third party to sift through all of the issues, interests, arguments, and emotions in order to reach an agreement that all parties can live with. During this process, mediators listen to each party s story and then spend their time shuttling from one room with the union s negotiating team, to another room with management s negotiating team; bringing offers and counteroffers to each party until a balance is struck and an agreement is reached. In the 2007 Annual Report of the Federal Mediation and Conciliation Services, an organization which provides mediation services to companies in every industry throughout the country, they reported that from FY 2005 through FY 2007 over 16,000 cases were mediated. Of these cases, nearly 13,000 were settled, representing a settlement rate of nearly 86% over the three year time period. 1 Exposure to mediation might also occur in discrimination and/or harassment complaints filed by current or former employees at the State or federal level. In the case of the Equal Employment Opportunity Commission (EEOC), each party involved in every claim filed with the EEOC is offered the opportunity to mediate their case. Since 1997, the EEOC has had a fully functional mediation program where cases are successfully settled in a in a timely manner. From FY 2005 through FY 2007, the mediation unit of the EEOC successfully resolved nearly 25,000 claims. This represents a 71% success rate. In addition, on average, cases were closed within 89 days. 2 This compares to the 290 day time period the EEOC is allotted to close a case through the traditional investigative process. Mediation is so strongly recommended by the EEOC that in a presentation given in June 2008 in San Jose, CA, entitled 9 Mistakes Employers Make and How to Avoid Them EEOC representatives stated that NOT utilizing mediation was mistake number five. 3 If mediation can successfully resolve issues that professional labor negotiators cannot, or if mediation can successfully settle claims of discrimination and/or harassment that have been filed 1 Federal Mediation and Conciliation Services, 2007 Annual Report, p Wong-Randall, Deborah; Alternative Dispute Resolution, EEOC Training Conference, San Jose, CA, June 13, Jung-Atkins, Hea, et al., Responding to EEOC + DFEH, EEOC Training Conference, San Jose, CA., June 13, 2008; 1

2 at the federal level, mediation practices can also be utilized to resolve and manage day to day conflicts in the workplace. WORKPLACE CONFLICT Normally, workplace conflict is viewed as dysfunctional, destructive and damaging - a generally undesirable by-product of working life. Nevertheless, given the rising diversity within the labor market, increasingly complex and ever changing work environment, changing expectations of employees and employers, and tough budgetary times, workplace conflict is now an inevitable and inescapable reality for every organization regardless of size, shape or structure. From hurtful gossip to co-worker flare-ups, from bullying to harassment, workplace conflicts quickly drain energy and destroy morale. That means decreased productivity, unwanted turnover, unnecessary distractions for supervisors, and higher costs and legal risks for the organization. According to recent surveys, in the average 8-hour workday, frontline managers and supervisors spend 60 to 90 minutes just keeping the peace. 4 What makes resolution of these conflicts difficult, especially for those who are untrained, is that the conflict itself is usually not the problem. It is the factors underpinning the conflict that are the real issue: Lack of trust; Lack of respect; Lack of support or a poor balance between work and home life; Breakdown in communication; Poorly defined team roles; Unwieldy structures; Lack of planning; Lack of clarity; and Uncertainty borne of change 5 Effective mediation practices can be utilized not only to resolve conflicts in the workplace, but to assist the parties in gaining greater understanding of the others point of view. WHAT IS MEDIATION? The Merriam-Webster s online dictionary defines mediation as the act or process of mediating; intervention between conflicting parties to promote reconciliation, settlement, or compromise. The California Code of Civil Procedures Subsection , and Evidence Code Subsection 1115, states that Mediation means a process in which a neutral person or persons facilitate communication between disputants to assist them in reaching a mutually acceptable agreement. More simply, mediation is a voluntary process whereby a neutral third party intervenes in a workplace conflict or dispute to assist the parties to reach a satisfactory outcome. There are different styles of mediation which can be utilized depending on the goal of the mediation. In the case of stalled labor negotiations, an evaluative style might be the most 4 HR Daily Advisory, HR.BLR.com, Conflict Resolution: Your Supervisor s Hidden Job, July 10, Liddle, David, From Conflict to Consensus: The Role of Mediation at Work. 2

3 appropriate because the main goal is normally to reach a settlement. When handling workplace conflict where maintaining ongoing relationships is critical, the use of the facilitative (or transformative) style of mediation tends to be the most effective in the short- and long-term. Facilitative mediation looks at conflict as a crisis in communication and seeks to help resolve the conflict thereby allowing people to feel empowered in themselves and better about each other. The agreement that arises from this type of mediation occurs as a natural outcome of the resolution of conflict. In order to create an environment wherein the process can be successful, certain factors should exist. Mediation must be voluntary; agreements that are created under duress are doomed to failure. The mediator needs to be looked upon as a neutral third party. The mediator cannot be perceived as someone who advocates for one side or the other or has an investment in how the dispute is resolved. Lastly, the process must be confidential. Mediation is intended to create a safe environment where all parties are able to communicate openly and honestly, and work towards the restoration of a positive working relationship. Mediation provides a structured process that encourages all parties to identify, consider and discuss their own and each other s current and future needs. Mediators encourage and facilitate open and honest communications: this often leads to increased awareness, understanding and empathy. MEDIATION SKILLS Because the success of mediation depends heavily on the skills and attributes of the mediator, the decision of who is to mediate is critical. The list of expectations of the mediator is daunting and includes: Maintaining neutrality at all times during the process; Ensuring confidentiality during all phases of the process unless otherwise explicitly agreed upon by the parties; Encouraging disputing parties to engage in mediation and consider the benefits of discussing their differences and seeking a mutually acceptable resolution; Establishing a safe and constructive environment in which parties can talk and listen to each other; Encouraging parties to describe with clarity and purpose how they view the situation and enable them to view it from the other party s point of view; Helping the parties identify and discuss key issues and concerns and encouraging parties to use non-violent and non-blaming language; Enabling the parties to explore a range of options and determine what results would be acceptable; Identifying ways to help them achieve those results and agree on a way to move forward; and Helping the parties agree on a series of doables or small steps. 6 While certain factors are important in choosing a mediator such as professional background, certifications, and training and experience, to be a truly effective mediator these learned skills 6 Liddle, David, From Conflict to Consensus: The Role of Mediation at Work 3

4 must be accompanied by certain personal attributes such as patience, empathy, optimism, flexibility, and strong communication skills. Communication is the key in mediation. The mediator must be able to communicate to the parties and, more importantly, listen. People in conflict tend not to communicate effectively and poor communication can cause disputes to occur or escalate. For mediators to encourage effective communication, they must also be good communicators, practice good speaking and listening skills, and pay attention to non-verbal messages and other signals emanating from the setting of the mediation. The mediator s communication skills, coupled with expertise and experience can assist the parties in negotiating more constructively, efficiently and productively. This function is critical after the problem has been defined by the parties and involves the mediator bringing direction and finesse to the negotiation efforts of the parties. Mediators can also act as catalysts for creative problem solving by, for example, brainstorming or referring to settlement options generated in other mediation experiences. THE MEDIATION PROCESS While each mediator develops their own process and style, mediation normally consists of five steps. 1. Opening Statement by the Mediator The mediator's opening statement sets the tone for the mediation and provides ground rules. The content is up to the individual mediator, but typically covers the following: Mediator's identity and qualifications. Mediator's role. "I am not a judge or a decision maker. My job is to facilitate communication." Assertion of neutrality and impartiality. Ground rules for the process, and the mediator's expectations for the parties. Confidentiality rules for what the mediator can and cannot reveal. Confirmations: o That the parties are there voluntarily, o That they are prepared to attempt to resolve the dispute in good faith, and o That they have the authority to mediate and make agreements on behalf of the organization. 2. Opening Statements by the Parties Each party presents an opening statement, typically covering: Its view of the dispute; The relief or resolution that it thinks is appropriate; and Anything that they wish to add to shed light on their position Usually the party taking action, the complainant, goes first. Both parties fully explain their positions, even if they become emotional. (Venting by the parties can be the first step in putting the dispute behind them and moving toward resolution.) 4

5 3. Joint Discussion The mediator generally starts the joint discussion by summarizing the parties' opening statements. Clarifying questions are then asked of each party so the issues can be properly identified, and so the mediator is satisfied that he or she understands the issues. The mediator may allow or encourage the parties to ask questions of each other. 4. Caucus with the Parties At some point in the discussion, the mediator typically breaks the parties into separate groups called caucuses. During this time, each group is in a different physical location. The mediator meets privately with each party. Virtually everything discussed in the caucuses, unless it was previously disclosed, is confidential. The mediator does not reveal the information to the other party. Caucuses and joint sessions may continue to alternate. At some point, the mediation process will come to a close. 5. Closure Either the parties reach agreement, in part or in full, or they do not. In most cases the mediation session will close with at least some issues resolved. Once an issue has a specific solution agreed to, it is reduced to writing by the mediator, then reviewed and signed by the parties. The mediation should end when settlement no longer seems possible, i.e., there is no more movement by the parties on any of the issues, and the parties and all possibilities seem exhausted, or if one of the parties withdraws from the mediation. However, the door should always be left open for future meetings because the parties may be amenable to settlement after time has passed, particularly after a hard look at their next options. 7 MEDIATION IN THE WORKPLACE There are numerous ways mediation can be implemented in the workplace. First, managers can be trained to act as mediators. In this model, taking all of the formal steps outlined above may not be practical. However, because they are on the front line when it comes to workplace issues, training such staff members in mediation practices can lead to the resolution of conflict at the earliest stages. Depending on the size of the organization, training a team of internal mediators may be an appropriate method of utilizing mediation. If internal mediators are used, it is critical that they be able to maintain neutrality and confidentiality. This may represent the greatest challenge in implementing an internal mediation program. This can be especially true if conflicts arise between staff at different levels in the organization (i.e., line staff v. supervisor, supervisor v. manager, etc.). If neither of these options is practical, hiring a professional, external mediator may be the most effective method of utilizing mediation. An outside mediator, while more costly to the organization, brings a sense of neutrality and objectivity to the process that might not be achieved with internal mediators. 7 HR Daily Advisory, HR.BLR.com, Mediation: Shorter, Faster, Less Expensive: What s Not to Like?, July 9,

6 Mediation is redefining the way human resources departments respond to conflict by offering a real alternative to traditionally adversarial, confrontational and punitive approaches. Mediation provides an early opportunity to resolve problems and prevent them from spiraling out of control - it nips conflict in the bud. It can also offer a credible and face saving route out of conflict when all else has failed. It gives people an opportunity to re-evaluate their own behaviors and attitudes and seek agreement with colleagues through a safe, structured and constructive process. Mediation offers a broad and diverse range of benefits, many of which can be measured through quantitative means including reduced costs related to litigations, improved staff retention and reduced absence due to stress and stress related sickness. However, there are other benefits to mediation that may not be as easy to quantify yet are equally valuable. These include increased levels of self-esteem, team morale and improvements in the psychological, physiological, and emotional well being of employees. 8 If conflict is inevitable (and it is) and if most of us have to work outside of our homes (which we do), we must learn how to deal with workplace conflict in a productive way. Mediation may not resolve all conflicts, but it certainly is an approach that should always be considered. Submitted by: Patty J. Tash Sr. Human Resources Analyst City of Rocklin 3970 Rocklin Road Rocklin CA patty.tash@rocklin.ca.us August 8, Liddle, David, From Conflict to Consensus: The Role of Mediation at Work 6