When it’s time to call in the negotiator

This article was first published in Scotland on Sunday, July 18 2004

Everyone who is involved in a dispute at work knows how stressful it can be. A small incident, a word spoken in the wrong way at the wrong time, or a failure to act quickly can lead to escalation, until matters seem to be out of control. Sometimes this culminates in disciplinary action or grievance procedures and may even extend to a claim in an employment tribunal or the court – or both.

By this time, those involved are entrenched in positions, emotionally charged, antagonistic and unlikely to be able to resolve the dispute constructively. Costs are racked up, time is spent on promoting and supporting claims and counter claims, management resources are channelled into handling the situation, staff morale is affected, perhaps throughout the whole department, or even across the business as a whole.

No-one knows what the outcome will be – except that there will be a winner and a loser, usually with no-one satisfied at the end. For the employee involved, the situation can become so stressful that he or she is unable to continue at work

Unfortunately, these symptoms seem to be more and more prevalent in organisations and businesses in Scotland. Research shows that the volume of cases going to employment tribunal has increased significantly in the recent past.

In 1998, in the largest survey of public attitudes towards the civil justice system ever conducted, Hazel Genn, professor of socio-legal studies at the University College of London, estimated that 2.4 million serious employment problems occurred in the five years to 1997. Over this period, 429,000 employment tribunal applications were made. In 2001/2 110,000 applications were made, showing an increase from the previous average of 85,800 per annum.

While this may be the appropriate route for a minority of workplace differences, it cannot be desirable for most. The survey found that around 50% of employees who made an application reported a decrease in status and earning following the hearing and almost a quarter found themselves unemployed after the case. The Chartered Institute of Personnel and Development’s Labour Turnover Survey in 2002 found that the average cost for replacing an employee was £3462. To that can be added the indirect cost in management time and resources - and to staff morale.

What is the alternative? In some businesses here and in other countries, such as the US and New Zealand, employers and staff are using alternative ways to deal with conflict, wherever possible dealing with issues as quickly and constructively as possible. They are looking for ways to minimise damage and to maximise the opportunity to find an agreed solution.

One of the most effective ways to achieve this is to use an independent mediator to work with those involved in a workplace difference, to help them find a solution. In New Zealand, mediation is now mandatory in employment disputes prior to going to the tribunal. A new, free Mediation Service has been set up by the Department of Labour. The first priority for the Service is to prevent employment relationship problems occurring in the first place, by providing information to help employers and employees develop better relationships, and to avoid problems or resolve them for themselves. If staff and employers cannot resolve problems themselves, even with advice and information, they can then approach a mediator.

Early indications have shown that 90 per cent of these cases settle at the mediation stage. This figure mirrors the high success rate for mediation generally, usually cited to exceed 80 per cent in all types of dispute.

In the mid 1990s, the US Postal Service, currently one of the largest civilian employers in the world with more than 800,000 employees, introduced a mediation programme entitled Redress to help resolve equal opportunities disputes. The programme proved so successful that it was made available to employees in every postal code area in the USA. About 1500 mediators are now on the Redress roster. A participation rate in 2003 of 82 per cent of employees with a dispute was achieved, with between 70% and 80% achieving resolution.

Participation is voluntary and nothing is binding on the parties until agreement is reached and put in writing. The reported satisfaction rate was over 90%.

According to it’s web site, the Postal Service is “convinced that when disputing parties are given the opportunity to participate in a transformative mediation session, not only do they gain a better understanding of the conflict, but they also develop a better ability to communicate with each other. In the end, conflicts in general are reduced as communication is improved. This all leads to a better workplace.” Mediation is an extraordinarily powerful process when used well and in the hands of a skilled facilitator.

Sometimes, if sufficient trust exists, internal mediators can be appointed; sometimes a mediator will be brought in from outside. The process provides a safe environment for people to express their feelings and concerns while hearing what others involved are worried about. It helps to encourage understanding of the true issues, which are often obscured by anger and defensiveness.

Often, when a clear picture emerges, it transpires that the difference between those involved is much less than they imagine, that they have much more in common than they think or, indeed, that the source of the problem is someone or something quite different. An opportunity usually arises to build or rebuild a relationship, to find a new way of doing things, to disengage in a constructive way or to acknowledge that the system needs changing. An apology, reassurance or explanation can be very powerful.

Sometimes, all that is needed is a way to help save face and move on with dignity. The alternative of lengthy claims based on allegations of sex or racial discrimination, unfair dismissal or breach of contract becomes much less attractive to all concerned.

In the UK, recent legislation encourages a more conciliatory approach to employment disputes. As mediation is given a central role, not only after a dispute arises - but in the workplace generally as a means to manage differences and prevent conflict escalating - it is possible that huge strides will made in improving relations when difficult situations arise. Many organisations are beginning to adopt a “mediation culture”, looking for ways to learn about and understand the management of conflict, and for that to cascade that down the structure to all levels.

The key to this new collaborative culture is to understand that there will always be differences. It is in how they are resolved that we will shape the workplaces of the future.

John Sturrock QC is the founder and director of Core Mediation

Mediation Saved Employers £75,000

A senior public sector employee in the west of Scotland was involved in a serious dispute with her employers.

Claims made had resulted in an application to an employment tribunal and possible court action, following the failure of an internal investigation and grievance procedure. The employee had become ill as a result of stress and a recent medical report indicated that she could not now return to work. Substantial sums of money were involved and there was a question about whether or not the employee would ever find other employment.

There was much anger on all sides and concern about the way in which the dispute had escalated from a relatively small incident with a colleague.

In the course of one day of mediation, the parties were given an opportunity to express how they felt about the situation and to move on from what was becoming an intractable and seriously damaging conflict.

They were able to find a solution which avoided the matter going further in the tribunal or court.

At the end of the mediation, the employer expressed regret and undertook to make changes to procedures. The employee received a cash payment. Cost savings were estimated to exceed £75,000.