Workplace Mediation

Workplace Mediation

(Organisational Disputes Resolution)

Workplace Disputes and MediationIn an article entitled: Workplace Disputes: Early Intervention Key to Heading Off Violence, Taylor Popielarz says: “It is impossible to predict and prevent the deadly violence that on rare occasions erupts from workplace disputes, but managers and co-workers can defuse many difficult situations before they turn tragic”.

“If the organization does not react until the behaviour has escalated, then it is unlikely that the business is going to be able to correct the employee’s behaviour,”  (Randy Ferris, co-founder of Violence Prevention Strategies).

Good Employee Relations

It seems obvious that good employee relations depend on the availability of a mediator when and as disputes occur, and before positions become polarised.  Many large business in Ireland now have good policies in place, and internal trained mediators who can be called on when HR departments are alerted to a difficulty.

Many smaller enterprises, even those with very few employees, and possible no dedicated HR department can find themselves overwhelmed when conflict arises among their employees. They should consider looking outside for a neutral facilitator.

There are many well trained mediators available now, throughout Ireland, with the experience and skill to provide reasonably priced services to businesses of all size. Disputes cost, more than money, and can cause untold damage if allowed to fester.

Mediation and the Law

The legal landscape in Ireland has changed in recent times with the introduction of The Workplace Relations Act 2015. Under the terms of this Act there are now just two bodies dealing with complaints and disputes in relation to Industial Relations and Employment Law;
1. The Workplace Relations Commission (WRC)
2. The Labour Court. See a short guide here.

Further protection is afforded employees under the Health, Safety and Welfare at Work Act 2005.

Dignity at Work

The genesis of Dignity at Work policies was the report commissioned by Minister Tom Kitt in 1999, which was completed in 2001 by The Task Force on Workplace bullying under the chairperson Eileen Doyle.

The Task Force issued a number of recommendations in their comprehensive report, which contained substantial empirical research as well as clear guidelines for the implementation of a Dignity at Work Charter.

The 2005 Safety Health and Welfare at Work Act, following the common law principal if duty of care, now places a clear obligation on employers to prepare a risk assessment which might address the risk of bullying in the workplace. The employer is now under a duty expressly to manage the system of work so as to protect against bullying.

The Act does not apply to employers with fewer than three employees. The Equality Act 1998 Code of practice, Harassment, order SI 78 (2002) The Industrial Relations Act, code of practice, bullying, SI 17 (2002), and the Code of Practice on the prevention of bullying at work, under the Health, Safety and Welfare at Work Act (2005), apply to all employers across the board.

Section 4 of the 2005 Act passes back some of the responsibility to employees to manage their own conduct. Under the Act. Codes of Practice are admissible as evidence in investigations and in the courts. Employees also have some duty with regard to having their employer sign up to Dignity at Work Charter, and to ensure the measures suggested in the three Codes of Practice are included.

Vicarious Liability

Employers often fail to take account of their vicarious liability in law in regard to bullying and harassment matters. The employer may indeed be held liable for the actions of an employee in the course of his employment, whether carried out with his knowledge or not.

Workplace Relations Commission

The recent reforms instigated by Minister Richard Bruton in January 2012, are now taking effect, and employees who have a complaint now have a one stop shop in the Workplace Relations Commission which will combine all the existing grievance avenues, which will improve the knowledge of both employees and employers with regard to dignity at work and the need for a policy.

This approach to dispute resolution, moves away from the industrial relations model based on rights, to a more comprehensive model based on rights, respect and needs. It is effectively a paradigmatic shift, as described by Lipskey & Avgar 2004.

A good dignity at work policy will:

  • Define bullying and harassment according to the HSA guidelines (Repeated, inappropriate, direct, indirect, verbal physical etc, one incident is not regarded as bullying) Harassment, and sexual harassment are defined under the Equality Act 2004 under nine discriminatory grounds. (Gender, race, family status, sexuality, religion, disability, age, membership of the travelling community). One incident of Harassment or Sexual Harassment constitutes harassment under the Act.
  • Distinguish bullying and harassment from other workplace behaviours, such as good management practices, including disciplinary procedures, health and safety measures, of which dignity should be one, performance related issues and insecurities, misunderstandings, misperceptions and mis-communications
  • Be visible, communicated and a part of the culture of the organisation
  • Identify the complaints procedure
  • Identify contact person or persons, internal or external (LRC Code)
  • Facilitate the complainant in his choice of dispute resolution and representation
  • Treat both the complainant and the other respondent with respect
  • Identify sanctions for breaches of the policy
  • Identify the timeline for action in the event of a dispute.
  • Clarify the degree of confidentiality
  • Describe the step by step procedure to be followed in the case of an informal allegation (LRC Code)
  • Describe the step by step procedure to be followed in the case of a formal allegation (LRC Code)
  • Indicate the re-training commitment, if necessary
  • Indicate the appeals procedure to be followed

Many workplaces have by now instituted a Dignity at Work Charter. The An Post charter is a clear, well explained document, covering all the potential areas of dispute. Electric Ireland and HSE also have a comprehensive document. Most companies with an interest in good corporate Governance now have policies in place.

Smaller companies, with few employees however often do not have Human Resources departments, and pay little attention to requirement for a dignity at work policy, until things go wrong. An external mediator will be invaluable to these companies when conflict occurs.

The redress scheme introduced into the United States Postal Service, one of the largest employers in the world, is probably the most progressive example of best practice. The Dispute Resolution model was piloted in 1994 in Florida, following a class action law suit.

In 1999 USPS, having experimented with external and internal mediation models, rolled out a Transformative mediation model, using a panel of external mediators, across the entire USPS network. Participation is voluntary for the participants, mandatory for USPS representatives, and the focus is on self determination.

“Participants are satisfied with the external neutral, and the model is deemed to be working well”.

The role of the contact  person, seems to me to present difficulties. It is not difficult to see how a nominated internal contact person in a company, where employees are familiar with one another, could prove to be next to useless. Almost all groups of people in the workplace, particularly when working closely, go through different stages, as described by Tucker, who developed the concept of the storming mountain to explain the inevitability of group formation and behaviour in the workplace. He indicates a four stage model, starting with “forming” of the group, when parties identify the boundaries of both interpersonal and task behaviours, “storming” inter group conflict can emerge and behaviours serve as resistance to group influence and task requirements. “norming” is the stage when the group is cohesive, relationships are good and an intimacy develops,  “performing” is the ideal, the stage in which interpersonal structure becomes the tool of task activities. Roles become flexible and functional, and group energy is channelled into the task.

It seems to me that an interference with the structure of the group, will inevitably take it back to the first stage, and an understanding of these dynamics, whilst outside the requirements of managers, should at the very least be part of the training of the contact person.
The contact person should also be trained  in conflict coaching, and be available to all parties involved in the conflict. The model, as described by Ross Brinkett, would be an ideal methodology for the workplace, involving the contact person/coach in listening for the story and context, inviting multiple perspectives of the story, clarifying the intentional story, re-appraising the story in the light of other perspectives, identifying skills in living the story, facilitating story review, re-direction, reconsideration, and the adoption of an optimistic outcome.

In his 1972 book on Transactional analysis, Dr Eric Berne, the communication practices of people in ordinary life, discusses communication in terms of ego states, and analyses the outcome of the interaction of the various ego states, that is Adult, Parent Child, and all combinations of these. The effect of the “ego state” of the parties on the dispute will be relevant to the outcome, the ideal being that we should always communicate in the Adult to Adult state. A general recognition of these theories would also serve the contact person well.

One “contact person” I spoke to said she felt helpless and ineffectual when trying to deal with a colleague who she knew was being bullied, excluded and over supervised by a fellow manager.

In my opinion the time is here for employers, big and small, in the interest of good governance, to design a fully integrated conflict management system, in which allows employees to choose their method of resolution, and how they are represented. This would allow the employer to intervene at an early stage in the conflict, to prevent escalation, and to take a view of conflict which though inevitable, can be positive. A clear, comprehensive Dignity at Work charter, allowing for a contact person should be part of this. However, I believe that a contact person should in all cases be an appropriately trained external, whose neutrality is assured and who is guided by a code of practice which incorporates confidentiality, voluntarism and self determination as guiding principals. Then the Dignity at Work policies introduced into the workplace will be real, and have true meaning.

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