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Advanced Mediation – Ray Kerkmez Research Paper

Advanced Mediation

 

Using Mediation in Workplace Dispute

 

 

by Ray Kerkmez  LLM, MDR

 

 

A Case Study

 Kangaroo Court Discount Stores Limited (“KC”) is a large supermarket and variety store chain, which has about 300 stores Australia-wide. Anthony has been employed as a supervisor in the same department for 4 years. He is well respected and does a good job. Anthony is responsible for the general operations of the supermarket stores. Some of the issues that Anthony is responsible for are purchases, logistics, HR, pricing, advertising and finance. A new supervisor, Richard, has recently been appointed in the same department and Anthony has to work with him. He is continually re-organising the section, re-prioritising work which Anthony has allocated and questioning Anthony’s judgement openly. It is not clear whether Richard has been appointed by the management of Kangaroo Court or by Human Soft (“HS”), an external agency which is responsible for recruiting some of the employees of KC. Because KC management has not clearly set out the roles and responsibilities for both the supervisors, there seems to be a conflict at the workplace, as Richard is interfering with the role and responsibilities of Anthony. The reasons for conflict seem to be a struggle for power and status, a personality clash, insecurity, poor systems and communication. Anthony is feeling insecure as he does not understand the strategy of having Richard as a supervisor, when in the past he had done a good job and the company did not complain about his work. In his previous meeting with the management of KC, a good review of his work had been given as the sales of his branch had improved dramatically over the last 6 months. The staff members of KC are also aware of the ongoing conflict at the workplace and are de-motivated with the developments. Earlier, the KC supermarket employees at this outlet were a closely knit team and with the development of this conflict, this unity in the team has deteriorated and the staff members are de-motivated. Anthony strongly feels that he has been harmed at KC as his roles and responsibilities have been interfered with. Nothing was conveyed to him by the management. Besides, Richard had abused and discriminated against him. Due to these developments, Anthony is contemplating litigation against KC and Richard.

 

Causes of the Workplace Dispute

In this case, and in several cases, workplace disputes arise from:-

  • Assumptions made about others’ intentions or thoughts
  • Misconceptions
  • Unstructured communications
  • Poorly managed style of handling the organisation
  • Imbalances during the staff meetings and communications
  • Perceived favouritism in the minds of the staff members [1]

According to Charter Institute of personnel and Development (CIPD), the causes of conflict can be categorised into a list which can be ranked in order of their importance (most important first):-

  1. Conduct problems
  2. Performance issues
  3. Absence and sickness
  4. Attendance issues
  5. Poor relationships between colleagues
  6. Theft, fraud and other criminal activities
  7. Harassment and bullying
  8. Sexual discrimination [2]

There could be a number of assumptions in the minds of Richard and Anthony. Anthony is the old supervisor of this department of KC and has been working in that position for the last 4 years. When the organisation recruited Richard, he may have assumed a lot of things. One possible assumption is that the management was to get rid of Anthony by placing Richard in his position. Anthony feels that Richard is slowly takeover the management of the store, and this is troubling Richard the most. There are also a lot of misconceptions between Anthony and Richard. Their idea of each other’s role is not clear. Anthony feels that Richard is interfering in his role at the supermarket, although Richard may have been offered the same role as Anthony. On the other hand, there is some amount of fault from the KC senior management as they have not clearly told Anthony his role. The communication channels between Richard, Anthony and the KC management have not been clear and this can lead to serious conflict at the workplace. Richard may also not be aware of Anthony’s role at the supermarket as he is newly appointed and may not understand even what post he holds. This has not been clearly communicated to him by management during his recruitment process. It would also be important to determine in this case if Richard has been appointed by the management itself or some external organisation. If the appointment is made by the management internally then there could be a problem, in that it has not foreseen the potential problems that could occur at the workplace and so have created a situation for potential conflict. If the recruitment has been made by an external organisation, then it seems it has not been done in consultation with KC management. The recruitment company may have not communicated properly with the internal management. The internal management has not coordinated the inclusion of Richard nor has anybody been properly informed about what his role is to be. This may be a case of poor management style. As nothing has been communicated to Anthony and Richard is gradually crossing his boundary in terms of roles and responsibilities at the workplace, there is a huge chance that Anthony may understand these developments as favouritism by the management. This would create further problems, as Anthony may get de-motivated, feel that his job is threatened and consider challenging the roles taken on by Richard. [3] 

 

Issues faced at the Workplace

One of the important issues facing any organisation is motivation. [4] Any person who feels left out at the workplace is bound to get de-motivated and this will have implications for his or her performance. Such individuals are not satisfied with their work and often this is demonstrated as anger or sadness or passive aggression. Such individuals often feel like no longer trying. Such individuals may often spread discontent and de-motivation to other staff members. However, the employer should be able to discern such situations early, if not anticipate them even before they occur and make corrective changes. Mediators often point out that de-motivation is often the single most important factor why employees want to seek justice or redress or some legal remedy. In this case, Anthony is de-motivated because of the issues that have been occurring at the workplace following Richard’s entry into the supermarket.

Due to the issue of de-motivation, employees may get emotionally obstructed, having a negative stimulus and leading to under-productivity  [5]. People often consider that their work may just be to go to the office between 9 am and 5 pm. They begin to feel that the current job is just a stop-gap arrangement. Any kind of further insult to a person’s status at work can result in serious emotional harm. In this case, Anthony has been continuously insulted by Richard and this can result in serious under-productivity from Anthony.

Often individuals who are de-motivated at the workplace may not communicate properly with others and often the feeling of unhappiness can be easily perceived. When communication stops and assessment of others’ ideas are made subjectively, then misperception sets in, causing a lot of stress, productivity problems and unnecessary conflict at the workplace [6]. Hence to prevent any kind of serious conflict, an organisation needs an effective human resource management system and often there is the need to include conflict management in the processes.

In this case, small issues need to be noticed and effectively managed to prevent any kind of risk to employees. The employer should use communication as an effective instrument to prevent conflicts so that issues causing the conflict get out of hand. If the conflict situation between Anthony and Richard had been understood early, then it could have been prevented and action taken. However, if the conflict is not managed, there is a need for mediation, or even litigation in courts, leading to unnecessary complications at the workplace. In this case the issue may move towards mediation as Richard’s moves are being perceived as threatening by Anthony.

Potentially, conflicts like these may have unnecessary consequences on the human resource pool at the workplace. De-motivation can spread like a wildfire and staff members may leave the organisation suddenly. This can result in attrition of the workforce. Often the cost of replacing one employee with a new one may be several times that of the original employee, and hence the consequences for the organisation may be serious. If Anthony is de-motivated with his job, the de-motivation could spread across the department like a wildfire, resulting in serious employee attrition. [7]

 

Use of Mediation

Often mediation is the most effective tool to be utilised to handle conflicts at the workplace. In fact, HR managers who are functional in the workplace can work in the field of mediation to handle cases of employee conflict through mediation. There are certain clear advantages of using mediation at the workplace:-

ü    Typically issues can be handled through mediation within a few days

ü    There is no need to include legal representation in mediation

ü    The outcomes of mediation are less drastic

ü    Issues can be kept confidential

ü    A problem-solving approach can be utilised to settle all the issues

ü    An agreement in the form of a win-win situation for both the parties can be reached

ü    Both the parties can contribute towards finding a solution [8]

There are four models of mediation as suggested by Steve Hindmarsh. These include:-

  1. Facilitative mediation – This mediation process can be used in situations in which decisions have to be made. The people who are involved can make such decisions. Parties in conflict can settle their conflict and arrive at their own decisions. The mediator can structure the mediation process constructively. [9]
  2. Evaluative mediation – This is applicable to cases of conflicts in which serious legal issues have to be evaluated and provided to the parties so that an outcome can be reached based on the issues in the case. The lawyers can work on such cases and can help provide options for both the parties based on statutes, case law, rules, regulations, past experiences in the organisation, etc. Economic alternatives may be used to prevent litigation in courts. Issues are settled in an equitable manner. [10]
  3. Transformative mediation – This is an unstructured form of mediation in which empowerment and recognition is used as interpersonal processes to authorise both the parties to make decisions regarding the case. The role of either party is being recognised and changes can be made based on the needs and priorities of either party. Both the parties in conflict are supported and often a relationship will build. [11]
  4. Narrative mediation – In this form of mediation, creative ideas are used to sort outBoth the parties can develop their own sense of reality through a story and can suggest alternative stories that would suit them. Various such storylines can be used and in the end a most appropriate option can be chosen. [12]

This is a very complex case in which there are a few human resource issues and a few legal issues. Currently, the roles and responsibilities of either supervisor may not be defined, due to which there is conflict at the workplace. Further, the communication channels between the supervisors and the management are very poor, resulting in conflict. Therefore, strong decisions need to be made, and so the facilitative model needs to be utilised. [13] All the parties to the conflict, including and in particular the supervisors, can suggest ways of handling the conflict. The mediator may not offer choices, but the most appropriate choice can be selected from the ones provided by the two supervisors. There needs to be clear-cut roles and responsibilities for the supervisors and so, during the mediation process, both supervisors can draw up what they see as their roles and responsibilities. This process can only be enabled through a facilitative mediation process. [14]

There may be certain legal issues in this conflict at the workplace. In this case, the management may have not communicated the role and responsibilities of the new supervisor to Anthony and hence he has suffered huge emotional damage. Besides, if they did not require his services, then they have to provide a termination letter with adequate time for his exit from the organisation and also probably a redundancy package, if his role is being deleted and a new supervisory role created with a supervisor with different qualities. However, the organisation has not addressed this issue, causing a huge amount of stress and emotional damage to Anthony. Another concern is that Anthony may have been harassed at the workplace, causing additional potential for litigation for employee harassment and bullying. Anthony can choose the litigation mode, or use an evaluative mediation scheme, in which lawyers would be involved in the mediation process to determine the legal issues in the case and their likely outcomes if any party was to resort to litigation. The legal strengths and weaknesses of both the parties’ cases would be determined and disclosed to the parties. In certain situations, there may be a need to go to court (for example if there are serious criminal charges or the issues cannot be handled by the mediation process). Anthony may also feel he needs to sue for emotional damage and harm to his professional status. Through mediation, economic options can be better studied and provided to either or both of the parties. [15]

Some of the techniques of mediation that can be proven to be successful in such a situation include:-

ü    If the supervisors are offered a neutral forum for their grievances and issues

ü    Management can effectively demonstrate to the employees that by hiring professional mediators to handle conflicts, justice is being delivered in the most unbiased way

ü    Teaching human resources management ways of mediation and conciliation

ü    Developing a fair system of handling workplace disputes in the future. [16]

 

Recommendation & Factors for Using the Chosen Models

          Recommendations:-

ü    Defining the roles and responsibilities for both supervisors

ü    Frequent meetings between the supervisors to sort out any issues

ü    Open communications with management

ü    Appraising the supervisors for their work at the organisation

ü    Better means of motivating the team

ü    Immediate resolution of any human resource conflict that may develop in the future

ü    Determining new roles that can be taken up by the supervisors

ü    A policy of not interfering with the roles and responsibilities of other team members

ü    Payment of damages to those subjected to unreasonable emotional suffering

ü    Punishment of those employees who have unnecessarily abused or discriminated against other employees based on their position in the organisation

ü    Determining whether the employer intended to get rid of Anthony from the organisation for a wrongful reason

ü    The mediator should not be related to either of the parties and would not benefit from the final decision or the outcome of the mediation (neutrality). [17]

ü    The mediator needs to treat both the parties equally and be free from bias. Each party in the mediation sessions needs to be treated equally (impartiality). [18]

Reasons for using the facilitative mediation model:-

ü    There was a need for decision-making

ü    There was a need to settle conflicts at the workplace

ü    The roles and responsibilities of both the supervisors need to be properly and clearly defined in close coordination with each other and the management

ü    The communication processes in the organisation had to be improved as both the supervisors needed to develop better means of communication in order to prevent conflicts from developing in the future

ü    Any unnecessary consequences of this conflict could have devastating effects on the current human resources with the risk for attrition

          Reasons for using the evaluative mediation model:-

ü    Need to evaluate the situation and determine the cause of the conflict

ü    Lawyers need to determine if any law has been breached

ü    Employees may perceive abuse and discrimination in this case

ü    Need to determine emotional damage and any undue harm to professional status

 

 


[1] N Peterson, (2008). Workplace Conflict Management, http://www.mediationagency.com/pdf/workplaceconflictmanagement.pdf

[2] CIPD (2010). Can mediation play a bigger role in resolving workplace conflict? A response to Michael Gibbons, http://www.cipd.co.uk/

[3] N Peterson, (2008). Workplace Conflict Management, http://www.mediationagency.com/pdf/workplaceconflictmanagement.pdf

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] CIPD (2010). Can mediation play a bigger role in resolving workplace conflict? A response to Michael Gibbons, http://www.cipd.co.uk/ 

[9] Steven Hindmarsh (2010). Models of Mediation, http://www.stevehindmarsh.co.uk/models-of-mediation/

[10] Ibid.

[11] Ibid.

[12] Ibid.

[13] Ibid.

[14] Ibid.

[15] Ibid.

[16] N Peterson, (2008). Workplace Conflict Management, http://www.mediationagency.com/pdf/workplaceconflictmanagement.pdf  

17] J Spence Sr., (2010). Two Models of Mediation – Neutrality and Impartiality, http://ezinearticles.com/?Two-Models-of-Mediation—Neutrality-and-Impartiality&id=5142515  

[18] Ibid.

 

 


 

References

 CIPD (2010). Can mediation play a bigger role in resolving workplace conflict? A response to Michael Gibbons, http://www.cipd.co.uk/  

Peterson, N. (2008). Workplace Conflict Management, http://www.mediationagency.com/pdf/workplaceconflictmanagement.pdf

Spence Sr., J. (2010). Two Models of Mediation – Neutrality and Impartiality, http://ezinearticles.com/?Two-Models-of-Mediation—Neutrality-and-Impartiality&id=5142515 

Steven Hindmarsh (2010). Models of Mediation, http://www.stevehindmarsh.co.uk/models-of-mediation/

 

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