Over the past 10 years, more legislation has targeted the workplace to support people working well together, including laws requiring employers to investigate and resolve interpersonal disputes for workers. Attention has been added with the implementation of the National Safety Standard Z1003 addressing employer responsibility for the psychological health and safety of employees in the workplace. Increasingly, more companies and workplaces are including mediation in their dispute resolution policies and procedures, which has now been identified as the “institutionalization of mediation” in the workplace. Nancy Welsh, professor of law and chair of the Section of Dispute Resolution of the American Bar Association, discussed this over 10 years ago, and it is now ubiquitous. But, in some ways, mediation in the workplace is still in its infancy, and suffering growing pains.
The goal of mediation is to provide clarity and predictability, which comes with the institutionalization of practice. Why include mediation if it does not offer a clear strategy for resolution and a predictable outcome? Organizations have failed to detail the expectations in their processes. Employees are asked to enter into these sessions in good faith not knowing if they are part of disciplinary procedures, what the mediator will do or what they can expect as possible outcomes. Notwithstanding professional mediators’ ethics that require a clear, up-front explanation of expectations, including confidentiality and outcomes, there is little to bind organizations to follow any particular procedures, according to Omer Shapira, law faculty at Ono Academic College. Entering into mediation at work involves a significant leap of faith, not only in the mediator but also in the organization. A great deal is at stake for employees with workplace mediation, including ongoing employment, workplace status and opportunities for future promotion in some cases.
Anecdotal evidence suggests that in more than 80% of companies where disputants participate in mediation as a dispute resolution strategy for interpersonal conflict (not including union-negotiated or collective agreement mediations), one or more of the parties involved in the mediation will leave their place of employment within one year. It is easy to point to the high departure rate as a failure of mediation and alternative dispute resolution (ADR), but let’s look more closely at what is happening and what can be done.
As part of my work with client organizations, exit interviews and post-employment interviews were conducted with a selection of employees who had participated in a mediated, interpersonal dispute resolution process in the workplace within a year prior to their departure. Four key themes emerged that highlight the errors organizations are making in implementing mediation in the workplace.
The first mistake organizations make is in using the wrong format of mediation. There is an opportunity to choose a reconciliation format that fits the particular situational dispute. Determining the form or style of mediation determines the role of the mediator. Styles of mediation might include evaluative, facilitative, transformative, or a combination. One style does not fit all. Seminal work by Leonard Riskin in 2003 in the Notre Dame Law Review
on mediation techniques and suitability is still a topic of debate today. The choice may depend on situational and organizational issues at the time.
An evaluative mediator who adds expert information to the mediation is helpful. It is often the style of choice for those who truly want outcomes with clarity. Even within evaluative mediation, there is a range of mediator behaviours from informative to directive. But if expert information is needed to resolve the dispute, opportunities for the parties to craft the outcome themselves may be limited, which can impact the long-term durability of any agreement. If the goal is that the coworkers will be able to go back to work together in an environment of mutual trust and respect, using evaluative mediation may not be the best choice.
Others argue that facilitative models work better for the workplace if the parties are going to come to a solution with which they can live. And transformative mediation proponents believe that without significant transformation of power imbalances in the relationship and acknowledgement of each other’s value, the parties will not find long-term satisfaction.
Now that mediation has been integrated into policies and procedures, there is an urgency to use it. Frequently mediators will be called to help resolve a workplace dispute coming out of a complaint filed of harassment, workplace violence or some other interpersonal conduct dispute. Immediately following the completion of an investigation with a recommendation for some mediation, the manager calls up a mediator and says, “Fix them.”
Interpersonal disputes in the workplace have a life cycle. Typically, they are not singular events; they develop over time with continuing incidents, often increasing in intensity. Complaints come to light often after that period of build-up, which the disputants have escalated mentally. A small annoyance at the beginning becomes a significant breach of personal safety and trust over time. Disputants will often describe their experience as traumatic, with psychophysiological impacts including lost sleep, lost appetite, lost productivity and physical illness that result in missed work. Employers want to quickly conduct their investigations, gather findings and resolve issues, so they logically look to their mandatory mediation policies for resolution and reconciliation.
I have had managers tell me that following an investigation they call employees to a mediation to get them back to work, but instead later have one or both sides balking, saying nothing has changed, the problem has not been adequately acknowledged or dealt with, and they do not feel safe. Starting a mediation process right after a complaint is a ticking time bomb. Disputants have to be ready to enter into mediation. Instead, organizations should abide by their disciplinary and performance management strategies in the interim to build trust in their response to call for mediation. At the very least, additional training and monitoring can be put in place before discussing back-to-work mediation.
Mediators get invited to assist with organizational disputes for many reasons. A common request is, “Can you come and do a mediation that will result in the employee quitting?” It’s a breach of trust to enter into mediation on the pretense that the employee has some say in the outcome when the employer has either predetermined that result or when the employer is using the mediation as an ultimatum before termination. Likewise, a performance management outcome goal will make any attempt to mediate an exercise in futility. A manager who says, “I just need the employee to do the job better,” is engineering a setup and a professional mediator will walk away from any such request. Mediation as a disciplinary procedure or performance management plan is an abuse of process and is one of the most common reasons employees leave.
In instances where this type of mediation has happened, employees have left the organization angry and humiliated. They have also followed up with exploring legal grounds for pursuing the employer for misrepresentation of the process or wrongful or constructive dismissal.
However, once an employer decides to part company with an employee, mediation can be a strategy for negotiating the details of the departure. Issues such as references, salary payouts and even farewell parties can be finalized in an agreement. Transparency in using mediation as part of the separation plan can result in higher ex-employee satisfaction levels and reduced stress from job loss.
Managers frequently misinterpret the origins and meaning of interpersonal disputes as a problem that is only between their employees—thus, the “fix them” approach. Disputes arise within an organizational system, and selecting a single level within the system for mediation is often an insufficient response. The goal of any dispute resolution process for the workplace is to help renormalize the work environment but at a better level. An examination of workplace policies and procedures for interpersonal conflict resolution illustrates the shortcomings of organizational planning that ends with a mediation session between the parties in the dispute. Blaine Donais, who heads the Workplace Fairness Institute, outlined that “workplace restoration encompasses a broad array of possible interventions.” As part of the investigative process or mediation, it is frequently recognized that a lack of management skills and organizational depth in identifying conflict situations can create a fertile incubator for the dispute. Manager and employee conflict coaching are key strategies to help restore a workplace and provide long-term, durable commitment to change. There is an expression by Victor Lipman, author of The Type B Manager: Leading Successfully in a Type A World:
“People leave managers, not companies.”
This phenomenon was reflected in the exit interviews, which highlighted the employees’ lack of confidence in managers to make meaningful changes to the culture of conflict in the organization. However, there is an opportunity for the group to learn from conflicts. Certified mediator and Professional Certified Coach Cinnie Noble talks about the role of coaching to create “conflict competence” in management, which then contributes to better strategies for going forward. Coaching post-mediation helps support changes that are proposed in the mediation agreement and can strengthen the resolve to make significant revisions to management’s awareness of potential conflicts before disputes arise.
The high number of employees who continue walking away from jobs post-mediation does not reduce the need for mediation in the workplace to resolve disputes. It means organizations must work harder to provide the right strategy, at the right time, with the right process and follow-up. We are still in the trial stages of using ADR in the workplace, but it is worth the effort to continue until we get it right.
Dr Barbara Benoliel is the academic programme coordinator in Walden University’s Barbara Solomon School of Social Work and Human Services. Based in Toronto, Dr Benoliel is also a professional mediator and president of Preferred Solutions Conflict Resolution, where she specializes in conflict management systems and alternative dispute resolution in organizations.