Link to New Law Journal - http://bit.ly/AwHHNy

• Character clashes.
• Misinterpretation of actions.
• Perceived under performance.
• Poor communication.
• Job protection.
• Bullying.

Regrettably, the British do not like conflict.  Most organisations are conflict averse, they do not analyse why the conflict arose and often fudge the issue rather than upset their employee’s feelings or, perhaps the truth is no one wants the sleepless nights or to be unpopular.  The classic example is the boss refusing to deal with his secretary’s poor performance or unacceptable behaviour for a quiet life.
If conflicts are not resolved it can have a serious impact on the business and can lead to:

• Low moral.
• Under performance.
• Disruption of communication.
• Absenteeism.
• High turnover of staff.

We examine below the old traditional approach and the benefits of mediation.

The Grievance Procedure
When employees turn to HR for support they are often told they cannot do anything unless they make it formal.
For an employee to make it formal often can mean they have to involve the grievance procedure.  It is a big step for that person to take what they consider to be the “nuclear” approach.  It becomes a matter of record on their employment history, a matter of public face and can be a high risk strategy to their continued employment.  If forced to adopt this high risk strategy by this stage often the aim of the aggrieved person is to secure justice, they want retribution.  Put politely, their intention is to see that person suffer and, possibly, lose their job. 
Our grievance procedures today, could almost be prefaced with we want to establish:

• Who is at fault?
• Who should be blamed?

Unintentionally, it becomes evaluative and sets complainant against respondent to battle out who is right or wrong.
On reflection after a few months of angst and anguish, because in reality having filed a formal complaint that is what it causes, what they really want or what they would settle for, is to restore a healthy working relationship with the position back to how it was originally.  Unfortunately, our grievance procedures promote either conflict or silence.  The former promotes one person leaving, the latter resentment and a festering situation.
In a way wouldn’t it be refreshing if the grievance procedure was prefaced with how can we establish:

• What went wrong?
• How can we learn from this and go forward?
• How can we restore a healthy working relationship?

We need to acknowledge and accept that when a party is faced with this type of work conflict, on which ever side, it causes deep issues for them:

• Intellectually
• Emotionally
• Behaviourally

If all want to move forward, both parties have to recognise these feelings and deal with the issues.
One of the approaches to achieve this is mediation.  This is a huge cultural change, and while they may be moving towards it “over the pond” in the USA, in the UK we still have a long way to go but we believe this is the time to introduce the concept of mediation in the workplace in all its various forms.

The Cost of Conflict
There are various ways of looking at the cost of conflict for industry.  Some surveys have calculated that 30% of absences can be attributed to stress related problems.  CIPD calculated that on average employee spends 2.1 hours a week dealing with conflict.  For the UK alone this translates to 370 million working days lost every year as a result of conflict in the workplace.
ACAS have calculated that the cost to an employer of a conflict if £9,000.  The average cost of taking a matter to a tribunal is £19,000.  Barclays Bank plc calculated the global cost in terms of employee time, management time, legal costs, disruption to work and replacement recruitment costs amounted to £277,000.
However you calculate the cost it is a significant and mediation is one way not only to reduce that cost but to provide an effective solution.

Mediation in the Workplace
If instead of allowing the complainant to revel in the “I want justice” arena, it was put to them that really what was in everybody’s best interest - theirs, the respondent and the company – which is to restore and improve on a previously existing healthy working relationship, after the emotion has been removed, they would probably agree.
There is still a feeling that mediation is a “last resort” before litigation but there are those would advocate that mediation should not be used “after the event” by which time the parties are already entrenched.  Instead we promote that organisations should move their “conflict procedures” upstream  to the beginning of the conflict and agree, without pressure, how they should deal with conflict situations in advance.  To us mediation not only works in theory but in practice.  It promotes solutions, it avoids business disruption, it resolves conflicts, it avoids anyone having to leave and it is cost effective in terms of management time, legal costs and the cost of findings a replacement.
It is clear the earlier a dispute is settled the better it will normally be for all concerned e.g. in terms of disruption to businesses and lives, and associated costs.

What can a mediator achieve?
As the process is confidential, and through utilising mediation techniques the mediator is able to explore the real issues affecting/troubling both parties.  There will often be external factors causing depression/stress, such as family or financial matters, exacerbating the work issue, which the mediation can address and even point the party in the right direction for external support.
After understanding the issues the mediator can get both parties to understand the others position, or perhaps even get the individuals to realise the real issues that are troubling them.  The mediator will challenge how the parties have constructed their own views, give an awareness and an oversight into the issues, allow the parties to reflect in a more balanced mood to overcome the normal initial resistance to move on to explore possible solutions.  By looking at the conflict in a different light the mediator can find a solution which is not just adding a sticking plaster but a real and long lasting solution.

Why incur the cost of an external mediator?
When economic times are difficult and all companies are looking very hard at cutting cost in all areas why should they pay an external third party to come into the company to resolve disputes?  At the end of the day, companies have got highly trained managers and HR personnel who should be able to do this without assistance from you.
First, does the internal person have the skill set to mediate?  Chosen correctly and with training the answer must be yes, but there are still problems:

• In-house does not have the feel of confidentiality.
• HR, rightly or wrongly, are ultimately seen as on the company’s side.
• Whichever party feels they have lost will challenge the independence.
• People will be known to each other – will they be able to tell the mediator everything and confide in him or her?
• The mediator may see it as not such a good career move to raise certain issues with more senior people.

For the mediation to work both parties must have confidence in the system.  Independence, impartiality (in itself can define a situation) and confidentiality all give the perception of confidence and trust, even to the knowledge that you will never meet the person to whom you bore your innermost soul, in the corridor or the canteen.
The reality is the more senior the level of the people in the dispute, the more likely you will need to have an external mediator to give the process credibility.

Conclusion
Regrettably formal grievance procedures are often seen as a last resort by disgruntled employees who by then want revenge rather than resolution and ultimately one of two valued employees will feel forced to leave.  Employees are more likely to remain silent and allow the situation to fester and create even more problems.
Mediation is an informal way of facilitating a solution between two employees in a cost effective way for the benefit of the business.

The “Taxman” is clamping down on salary sacrifice schemes and traders and private tutors using e-commerce websites to run small businesses. Computer programmes known as “webrobot” software, enables HMRC to trawl the internet for traders who may not have paid tax. However, should anyone have a problem, HMRC have also changed their approach to resolving disputes, and are seeking to deal with them as efficiently, and at the least cost. HMRC is looking at the “collaborative” approach which includes using mediation as a vehicle to aid resolution.

http://www.taxjournal.com/tj/articles/mediating-tax-disputes-hmrcs-adr-pilots-28822

PW 22.08.11

It was announced on the 23rd June 2011 that the Government has signed the first Dispute Resolution Commitment (DRC), which requires all departments and agencies to use mediation, arbitration and conciliation wherever possible before taking disputes to court.

http://www.justice.gov.uk/news/features/feature230611b.htm?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+gov%2FWfFX+%28Justice+news+alerts%29

The continuing economic downturn continues encourages some clients, usually upon receipt of a bill, to attempt to find fault with their professional advisors thereby leading them to explore whether they can recover perceived losses.

Whilst I do not have any hard facts to support this, many of us have anecdotal evidence to say that there has been a significant increase in the number of claims against a range of professionals including solicitors, barristers, valuers and surveyors.

its remedy

We respond to this situation in the same manner as we would in another “disagreement”, that is, we recommend that you earnestly consider mediation as the sensible route to overcoming any such problems that cannot be sorted out straight away by conventional negotiation. Our Director, Peter Whitman is readily available to assist in making the necessary arrangements for mediation.

Peter comments that “Our Mediators have a huge amount of experience in this area both as mediators and compliance partners in their respective practices. North West Mediation Solutions Mediators’ record of mediation success mirrors the national statistics, with successful conclusions to disputes being above 85%. In this piece we want to raise awareness of mediation as a cost effective means of overcoming disagreement, without unwanted publicity, without referral to your professional body or ombudsman,  and avoiding bitter “in court” conflict.”

and the costs.

We offer our clients a clear picture as to the likely cost of a mediation. Our scale of fees is clearly set out on our website.

Whilst the case of G4S Security Services (UK) -v- Mr. A. Rondeau (http://www.employmentcasesupdate.co.uk/site.aspx?i=ed7880) may not use the words “mediation”, it highlights the importance of appropriate settlement discussions and the need to consider carefully the responses made by the other party and their offers.

Mediation is now a recognised method of resolving cases once they have been referred to a tribunal but it is under utilised in resolving disputes in the workplace and in grievance procedures.

Grievance procedures by their nature ultimately apportion blame.  For an employee to invoke a grievance procedure means that they view the conduct as very serious.  The decision can ultimately mean that either a valued employee or a valued member of management is almost forced to look for alternative employment. 

Grievances invariably arise from misunderstandings or a misinterpretation of events.  Such misunderstandings can often be resolved by the intervention of an independent person who can appreciate the views of both parties and then facilitate an exchange of views under reaching of an amicable solution.  A mediator is ideally placed to offer that service. 

The Government consultation on resolving workplace disputes includes an aspect of ways of encouraging settlement.  Mediation is one such tool.  It can save a great deal of time and expense both in the workplace and at the tribunal and results in the retention of the valued members of staff.

 Mark Whittell

Accredited Workplace Mediator

North West Mediation Solutions.

In 2007, when speaking to members of the Institute of Directors, I first used the term “business tool” in relation to mediation. Since that date, I, and the members of North West Mediation Solutions have continued to see the strength of that phrase in association with mediation, and its appropriateness in business  in reducing costs, both internal and external, and maintaining business relationships with customers / suppliers / manager / employee, notwithstanding that they have “fallen out” over a contract or situation within the workplace.

When I read the following article by Joanne R. Moss, which was first published in the February 2011 issue of Law Business Review, I was glad to see that she sees mediation in the same light. Click here to download article.

 http://www.legalweek.com/legal-week/news/1740382/research-rise-court-appearances-ftse-100-companies

or

Do I heed the warning within the case of BSkyB v EDS  ?

http://www.shoosmiths.co.uk/news/3185.asp  

or

Do I look more carefully at the options, and as Jonathan Djanogly MP, Parliamentary Under Secretary of State, Ministry of Justice suggests, consider the court as the last resort, rather than the first ? http://www.justice.gov.uk/news/announcement200910a.htm

I will attempt to help in answering, by paraphrasing and commenting on the above articles:

·         In relation to the FTSE 100 comment, Sweet & Maxwell, the legal information provider, showed in a study that “during the year to 30 June 2010 there were 179 cases involving FTSE 100 companies across the Court of Appeal, Queen’s Bench and Chancery Division, compared to 154 in the previous year.” “ This rise [in court appearances by the FTSE 100] suggests that the inevitable flood of litigation following the economic downturn has yet to peak.” The total number could of course rise as claimants have six years to launch a claim. However, the research adds that: “Cases that actually turn into High Court appearances are only the tip of the iceberg of commercial disputes. The majority of commercial disputes are now settled outside the courts through alternative dispute resolution such as mediation or arbitration.”

·         As far as the BSkyB  v EDS case is concerned you may feel that the “litigation risk” is too great, on the other hand you may feel that your preparation for the case has ensured that “rogue” evidence is unlikely to be given, BUT, that extensive preparation will have taken a great deal of time for you and your employees which equals a great deal of cost to your company. Litigation is not always doom and gloom and there are many other “safety” measures suggested in the article, but there is always a litigation risk. Finally, remember that settlement, whether by alternative dispute resolution or more traditional without prejudice negotiations, is not a dirty word. It is often far better to negotiate a settlement that all parties are reasonably happy with than to hold out for your ‘day in court’, with its associated risks.

·         What Jonathan Djanogly MP has to say has already been referred to in the two preceding  paragraphs. Having had the opportunity to visit courts, advice centres and many of the other bodies and organisations that make up our civil justice system, he comments that “what I am hearing is that both the public and the dedicated professionals working in the system want reform. They want a system that is fairer, faster and less costly”. He poses the question “how will we bring about change?” and comments that we must ask some fundamental questions about the way we, as a society, use our civil justice system and the role each of us plays in taking responsibility to resolve our own problems where possible. “This is where other dispute resolution options other than court have an important, possibly revolutionary role to play. All too often court has been seen as the first, rather than the last, resort for dealing with disputes -whether it is a contractual disagreement between two companies or neighbours with a boundary dispute.”

The answer, and final quote from Jonathan Djongoly MP -

“Our evidence shows that mediation can be quicker, cheaper and provide better outcomes than going to court.”

Peter Whitman

18.10.10.

Admit it! How many e-mails have you sent out accidentally via one of the social media sites and realised some time later, following some reflection, that perhaps it shouldn’t have been sent. I’m sure that many entries on Facebook, Twitter, Linkedin etc can display examples, the recent one being Kevin Pietersen’s “slip” by ranting on Twitter and the American juror who published her “verdict” on Facebook http://www.abajournal.com/weekly/article/oops._juror_calls_defendant_guilty_on_facebook_though_verdict_isnt_in .

The word “social” of course does not restrict networking to after hours actions. Many of those entries made in error, or in haste, are made during working hours, on employers’ equipment, and, in some cases are not entirely complimentary to the employer. Of course, no one will take offence at a complimentary comment being made about them, even if the “post” was an error, BUT those who make adverse comments on line, however well founded, MUST treat it as a private matter. By making them on line in a social networking site, those adverse comments become public, and thereby place the author in line for a possible defamation claim.

Businesses, professionals and individuals in this day and age are more alert to, and protective about, their reputations. It takes years to build up a business, a professional position or standing in the community, but one criticism or unwelcome comment published, that is, posted on a worldwide available website, can harm those reputations for a long time.

In a compensation orientated world, such comments can be costly. Your comment may have been a slip, or at worst was intended but ought to have been sent privately, but the damage to reputation has been done. High costs in defamation cases, and one could argue, in a majority of cases in other areas, only occurs if you have a stubborn claimant and stubborn defendant battling against each other, and, if the author feels that his comment was correct, will often take preliminary points which do not assist the process but do increase costs. However, such forceful action  by defendants—particularly early on, when costs are low and there is still a possibility to settle the case before views become entrenched and costs take over—is something that claimant lawyers come across frequently. It is then when serious consideration should be given to an alternative to litigation, and to the formulae below.

Alternative dispute resolution (ADR) procedures work well in most forms of litigation, and our experience is that more than 80% of cases settle at mediation, and there is no reason why defamation proceedings should not reflect that success. Claimants with a good case are often reluctant to go to mediation because they feel that defendants can use it as a means of avoiding the damages that they feel they are entitled to.

The mediators within North West Mediation Solutions feel that that concern can be overcome by the parties speaking to the appointed mediator in advance of the mediation to provide guidance on the mediation approach and requirements, which can be considered by the parties at that preliminary stage. The parties are then able to consider, in the cool of their own camps, the comments of the mediator and apply the formulae:

Action:          Derogatory comment + Social e-mail =  

                         publicity.

Effect:           Offence taken + litigation takes place = high

                         cost.

Alternative: Pre mediation chat with mediator + 

                          commerciality = settlement  + lower costs.

Benefit:         Early settlement +less publicity + reduced  

                         costs = satisfaction.

“Getting to YES: Negotiating Agreement Without Giving In” is a best-selling 1981 non-fiction book written by Roger Fisher and William L. Ury.

If you like or are interested in successful negotiation it is a “must read” .It’s all about the human psychology associated with the bargaining process. I read it with interest a long time ago remember thinking to myself “I wish everybody I had to bargain with had read this book”.

Whether we like it or not, we enter into contracts every day of our lives. We buy newspapers in the morning, sandwiches at lunch time, beer in the pub and so on. Sometimes we pay the asking price. Sometimes we negotiate discounts. The item may be overpriced or damaged. It may be last year’s model or about to become out of date.  Whatever the reason, humans like to negotiate.

Although you may never have thought about it, these transactions are all contracts in their own right. There is a body of law which supports and regulates these contracts and the truth is that 99% of us are oblivious to this body of law.

Negotiating contracts in business is also something of an everyday occurrence. Thousand of agreements are negotiated and concluded every day of the week without us even giving it a second thought.  But there are occasions when a contract must be secured – the survival of your business may depend on it – and the negotiation takes on a life of its own.

At the risk of stating the obvious, people and entities negotiate contracts that will result in both sides obtaining something of value from the agreement. Often that something-of-value is easy to identify but, in complex business transactions, gauging value can be difficult if not impossible. Often concessions are offered by one party in the belief that the other party will attach value to this gesture when in reality what the other party needs is something completely different.

Now for another “home truth”. Human beings who become involved in complex and difficult negotiations can become extremely competitive animals and will think nothing of exploiting an opponent’s weaknesses if these are disclosed during the bargaining process.

So, how do we “get to yes” with a person we are negotiating with, obtain what we need from the ensuing contract and not give too much away in the process?
I think I have the answer – why not employ a neutral facilitator to assist you and your opposing party negotiate and conclude an agreement?

Negotiating a contract is not that different from resolving a dispute. You still need to separate the people from the issues, explore common interests, invent options for mutual gain as well as establishing your Best Alternative To a Negotiated Agreement (“BATNA”) and Worst Alternative To a Negotiated Agreement (“WATNA”).

If any of this sounds familiar it is probably because you have read one of my previous articles on preparing for a successful mediation.

So, who should you turn to when you need to “get to yes”? You’ve guessed it – you need to speak to one of my mediator friends.

Peter Vinden

Mediator, North West Mediation Solutions