Recovery Cost-saving Through a Culture of Mediation

Swiftly scheduled mediation sessions are proving to be an effective antidote against rising dispute costs for recovering businesses.

Many of you, particularly those in employment, may have already come across the latest State of HR Survey report from Speechly Bircham and King's College London HRM Learning Board that was published at the beginning of February. I mention it in reference to the statistic that 29% of employer respondents stated that the number of grievances they had dealt with over 2009 had risen, with 23% believing that the figure would rise again over 2010.

On their own, perhaps these are quite low proportions to be concerned about. However, whilst we await the official Tribunals Service statistics for 2009 to 2010, other developments over the last six months seem to indicate caution may be wise. Most notable was the launch of the pilot evening tribunals programme in November to address a workload that Tribunals Service Chief Executive Kevin Sadler described as having "gone up considerably over the past year".

Concerns about a potential rise have some strong logic behind them. The State of HR Survey highlights deterioration in the management-staff relationship over the last 12 months - natural in a recessionary climate. As recovery continues to find its feet, this is likely to pave the way for growing discontent over pay, career development opportunities and perceived unfair treatment during the height of the recession. As job opportunities increase, employees will almost certainly become more confident about voicing concerns. And the last thing a recovering business needs now is a slew of costly Tribunal cases impeding their vital 2010 growth strategies. This is why our advice to clients has been to implement a culture of mediation as quickly as possible.

We all know the benefits of mediation over other forms of ADR and litigation - it can be quick, flexible, cost effective and allows both parties to address unreasonable claims and expectations openly. Most importantly, its inherent nature of forcing improved communication can help to calm tempers and expectations long before the word "Tribunal" is uttered. Mediation allows all parties to verbalise their thoughts and concerns in a safe environment, with greater capacity to unearth the real issues and find a common ground. And this is not necessarily restricted to just employment disputes. A culture of mediation can become an ethos for the entire organisation.

For those of you who would like a taste of this in action, I provide a scenario to illustrate.

Case Study Background

In the busy sales department of a medium-sized stationary supplier, John maintains the customer database. Because of a need to increase efficiency in the light of substantial client-base growth, the business recruits Julia as a database manager in order to implement a more powerful software solution and a more efficient data processing workflow. It also recruits Suzy to work alongside John to maintain the expanded database. Both John and Suzy report to Julia. John is a long-serving employee and is older than both Julia and Suzy.

Triggers

The huge shift in power and responsibility has caused John to feel disgruntled. With the loss of certain aspects of his role, he doesn't feel that the work being assigned will stretch or develop him, and even perceives that his job may now be at risk because of the more efficient system.

John's previous supervisor - the sales department manager - liked to retain control of work. Therefore, tasks were awarded in small chunks and staff members were encouraged to ask as many questions as possible so he could steer progress. In contrast, Julia wants to entrust tasks to her staff and let them get on with their work with minimum supervision.

John is not keen on this change in management style. And because Julia feels that John asks too many questions for someone at his level of experience, she is reluctant to trust John with the more taxing work. This issue is exacerbated by John continuing to accept database tasks from his previous supervisor.

In effect, John and Julia resort to inaction in not cooperating with each other. Work suffers on both sides, and signs of emotion and stress begin to show. In the hope of gaining support and thus undermining Julia, John talks about her derogatively to other team members. There is a danger that both the immediate database team and the wider sales department structures will be impaired. Independently, each party seeks advice from the HR Manager.

Approaching the Mediation: Position, Needs and Common Ground

New to the job, Julia is keen to prove herself as a good manager. She wants to achieve tasks within the tight timeframes imposed upon her, and she feels that she should be able to utilise her two employees with minimal questioning or referral. In contrast, John is in denial of the company's strategic changes and the shift in management style that he feels has been imposed upon him.

Julia's needs are in relation to her identity - that of being a well respected manager. For John, it is important that he retains his job security - essentially a need to survive. They each seek to undermine the other's needs: Julia gives the interesting work to Suzy, whilst John seeks to discredit Julia with other team members.

However, there is a common ground. Both Julia's and John's interests are concerned with getting the job done and keeping the directors and customers happy. It is their positions that are at odds.

Issues to Consider

In looking at the issue from both sides, the mediator identifies a range of causative factors that can be brought into discussions:

• Poor change management that may have led to feelings of fear and denial.
• Lack of communication from both sides.
• Lack of mutual respect and cooperation.
• Tight deadlines that cause Julia to pass work straight to Suzy rather than tackling John's performance issues.
• Balance of power and authority.
• Julia's failure to adequately assess or gain an understanding of John's capability/competence.
• Lack of clear determination of role and responsibilities.
• A failure to agree mutual expectations of each other.
• Different backgrounds and previous career experience.

Mediated Resolution

Mediation allows each party to individually voice their feelings to a third party mediator in a 'safe' environment. They are then brought together and encouraged to discuss the issues openly and honestly.

The company's strategy for change is explained. Both parties are informed about the way in which teams and individuals will be managed going forward. John is encouraged to identify some potential benefits of these changes for himself.

John then explains how he was managed previously, including how he was encouraged to ask questions at regular intervals. He explains that he feels vulnerable in his job and perceives that some of his regular assignments are being allocated to Suzy. He feels that his ongoing development will be impaired if he is only allocated small, mundane tasks. In a safe and facilitated environment, John tells Julia that he doesn't like her attitude and the way that she responds to him.

Julia admits that managing people is a new aspect of her work, and acknowledges that some help or training may be of benefit. She refers to her own time constraints and deadlines, and explains why she would like John to have more confidence in his own abilities and try to solve problems before asking questions.

Julia agrees to speak to her fellow managers so that they can agree how work will be allocated and by whom in future. John agrees to stop accepting work from his previous supervisor and to try to adapt to Julia's management style.

They both accept their different career paths, and agree to take this into account when working together. They are encouraged to be aware and tolerant of each other's strengths and weaknesses - to exploit the strengths and work together to improve the weaknesses. Julia also agrees to try to be more approachable and to consider John's development when allocating work.

Rosemary Mashford is an ADR Group Accredited Mediator and Head of Alliotts' Human Resource Management Team.

Email Rosemary Mashford at rosemary.mashford@alliotts.com

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