Technical Affairs

Mike Aamodt, Associate Editor

This month's column will address two questions that I received from ACN readers. As usual, the column will also include an attempt at HR humor.

I received a question about mediation in organizations so I asked Bobbie Raynes, a consultant and Virginia State Certified Mediator to write a column discussing mediation. At the end of her column, is another attempt at HR Humor.

Mediating Conflicts in Organizations

Bobbie Raynes, Virginia State Certified Mediator
Personnel Research Associates, Inc.
Pulaski, VA

Recent studies indicate that employment discrimination cases have increased at a significant rate over the last four years. Organizational conflicts leading to lawsuits by dissatisfied employees alleging sex, age, race, and disability discrimination have, in fact, doubled since 1992 and have been rising 20% a year.

Defending such charges is expensive and time-consuming for any organization. But when the organization loses a discrimination case the results can be financially crippling to the organization. For this reason, it is no wonder that an increasing number of organizations and small businesses are becoming more proactive in addressing smoldering conflicts before they spiral down so deep that the only alternative to resolve the conflict is litigation. The goals of these proactive organizations are 1) resolving the conflict while fostering and maintaining positive relationships between conflicting parties and the organization and, 2) eliminating, or at least reducing, the potential of an expensive lawsuit. The alternative dispute resolution method which best meets these goals is mediation.

In this article, I'll explain what mediation is (and what it isn't) and it's advantages, the sources of common conflict, the mediation process, and how to develop a mediation plan and select qualified mediators.

Understanding Mediation

Mediation is a non-threatening process involving a neutral third party who facilitates communication between individuals engaged in conflict to help them defuse and/or resolve the conflict. Mediation is not only useful in heading off potential lawsuits, when used early in a conflict, it can reduce potential acts of retribution, including violence, by disgruntled employees. It is a process that many organizations use in conjunction with their employee assistance programs rather than a replacement for their EPA. Although supervisors, managers, and human resource specialists are often called upon to mediate their employees' conflicts, it is more common for organizations to use professional mediators.

Unlike arbitration, another alternative dispute resolution process in which the primary goals are determining who's right and wrong and passing down a binding decision on the parties, mediators are neither judges or decision-makers. That's not to say that arbitration cannot be a viable alternative solution to handling conflict. There are many times when it may be the best answer. In fact, many organizations with a formal mediation plan switch to arbitration if mediation fails. However, according to one study, mediation produces more tangible, satisfactory, and enduring agreements than arbitration. More important is that 90% of all conflict situations referred to mediation are resolved without arbitration or litigation. There are several reasons for this high success rate, each of which addresses the goals of pro-active organizations:

There are no losers. That is, unlike in a court of law where a judge decides the winners and the losers, mediation offers win-win solutions by allowing disputants to decide the best way to settle their conflict.
Disputants have control over the outcome of any agreement. Many times, conflicts arise because one individual feels that another is controlling his or her life. Arbitration or litigation is yet one more way in which control is taken away from the parties. In mediation, however, disputants can regain some of the control they perceive they have lost by controlling the outcome. When people feel in control, they will generally be more amenable to working out their differences together.
All parties are heard. During mediation, each party gets to "vent" and give his or her side of the conflict. I have found as a mediator (and as a parent!) that simply allowing people to "get it off their chest" can greatly reduce further conflict. All parties to a conflict have an opportunity to explain their goals, define what they see as the source of the conflict, and identify what they believe would be satisfactory solutions to the conflict. When people feel they are genuinely being heard by a neutral and fair third party, it validates their feelings. This usually fosters an increased willingness to engage in positive mutual problem-solving.
Power is rebalanced. Whether true or just a misperception, parties engaged in conflict often feel that the other party has more power. This is especially true when the conflict is between a supervisor and employee. Individuals who feel powerless are more likely to choose litigation over positive problem-solving alternatives because they feel they get their power through a jury who, as stated earlier, will generally take the employees' side. In mediation, neither party has more power than the other. When I mediate, if I notice that one disputant seems to be more talkative than the other, or one seems intimated by the other, I will use such techniques as making more eye contact with the less powerful one or encouraging the "powerless" one more than I might do with the other. When both parties see they have the same power and control as the other--hat everyone is "equal" in this process--they are more trustful of the process and more willing to work out their differences in mediation rather than in court.
The process is confidential. Unlike court cases where proceedings and court documents are open to the public and media, mediation can ensure that information does not get out to the public. This is both advantageous to the employee and the organization. After all, most people are private and don't like airing their "dirty" laundry to the whole world! In addition, neither organizations or employees want their reputations to be scrutinized by people not privy to all the facts. I'm sure when Monica Lewinsky first told Linda Tripp about her relationship with Bill Clinton, she had no idea the whole world would soon become involved in her private "affairs."
It is less time-consuming and less expensive. Litigation costs are prohibitive to all parties involved. And considering the number of times court cases are postponed and rescheduled and then postponed again, disputants can be tied up for years attempting to settle their case. This prolonged exposure to conflict is highly stressful and can lead to other problems such as health issues and performance problems.

It is because of the above advantages, organizations are choosing mediation over other alternative dispute resolution methods, regardless of the source of the conflict.

Sources of Conflict

Organizational conflict typically arises from the following sources:

Organizational Structure:

Organizational structure pertains to how the organization is operated and the impact the structure has on employees. For example, I mediated in one organization where a supervisor's "hands-off" management style was causing conflict with his employees. He truly believed that his staff was capable of making decisions without any help from him. In other words, he had complete faith in his employees. Consequently, he did not hold staff meetings or provide guidance. To him, his management style was a compliment to his staff's abilities. Unfortunately, his staff wanted and felt they needed more input and guidance from him. They believed his role was to serve as coach, and they wanted him more involved in their decision-making. This difference between what the staff wanted and needed and what the manager gave lead to conflict. The solution was to get the staff and supervisor to sit down together and talk about their expectations of each other, which they did. They were soon able to come to some agreement which led to resolution of this conflict. The supervisor agreed to hold weekly staff meetings to inform his employees of organizational matters and to talk about employee concerns. The employees agreed that when they had a problem or felt they could not handle an assigned task without input from the supervisory, they would approach him instead of waiting for him to come to them to ask about their concerns.

Organizational structure also pertains to polices and procedures. Often, policies perceived as vague or unfair can lead to conflict. In another organization in which I co-mediated, there was a policy that stated that people had to give a week's notice before taking a vacation day. The employees thought this was unfair because there were times when they found out at the last minute that their children or spouse had an event the next day that the employee wanted to attend. This policy wouldn't allow them to take that unexpected opportunity. Here, the solution was for management and employees to meet and discuss how the policy could be changed to meet the needs of everyone.

One of the biggest sources of conflict emanating from the organizational structure is organizational change. I have found that, typically, organizations going through reorganization or downsizing don't proactively address the inevitable conflict that occurs with any change. Consequently, what occurs is that minor disagreements escalates into conflict because there is no process for handling the conflict in a timely manner. This was the situation in a case I helped to mediate between a group of employees and the CEO at a local YMCA.

Due to financial constraints, the organization had to lay off many of its part-time employees, which increased the workload of the full-time staff. In addition, the organization was changing the way it did business and how it operated its day care center. Many of the jobs the staff had done for several years were, in some cases, dramatically changed. After several months of dealing with disgruntled, depressed, and unhappy employees, the CEO requested mediation services. After meeting with each full-time staff member, we determined that a big source of conflict was uncertainty: employees were confused about their new roles. They had no new job descriptions, no staff meetings had been held for several months to explain changes or new expectations, and no one knew who was responsible for what. Since people didn't know their roles, they "made" up their roles. This caused some employees to cross over into boundaries of other employees, which caused dissension within the group. To reduce the conflict, it was agreed that the employees and CEO would work together to identify individual job roles, develop specific job descriptions, and begin to hold weekly staff meetings to share information so that confusion could be minimized.

Organizational Relationships:

Another source of conflict is organizational relationships. For example, there are many times when an employee is promoted to management and now must supervise those people who used to be his or her equal. This type of situation often leads to conflict that can only be addressed by a neutral third party. Most of the relationship problems I see in organizations are because of these changing roles.

Other relationship problems occur when two or more individuals perceive they are dependent on each other to get the work done. This interdependence happens most often in teams where people are expected to help each other and demonstrate an equal commitment in completing a task. If one party perceives he or she is working harder than the other and that the other is not pulling their fair share, conflict will occur.

Scarce Resources:

We typically think of organizational resources as such tangible items as promotions, pay raises, new offices or furniture, and/or major office supplies. Every year, an organization must develop a budget plan for the next calendar or fiscal year to determine who gets what resources. Usually, there is not enough money to meet all the demands. This means that management must work together to determine who might get the "bigger slice of the budget pie." When people perceive they are fighting for a scarce commodity, "working together" is not their number one goal!

Organizational resources can also be intangible. This might include gaining someone's approval or trying to win a supervisor's friendship. Again, when individuals feel they are in competition with another for these intangible resources, conflict is likely to occur.

Incompatible Personalities:

There is no question that some people are just not going to get along with each other no matter what. They may both be good workers and good people, in general. But, for some reason, their personalities don't mesh. When personality is the cause for conflict, mediators work on particular behaviors that people are using that may be causing the conflict. In the example above regarding the YMCA, there were at least two people in the group whose strong personalities made them appear controlling and insensitive to others' feelings. Our goal wasn't to change their strong personalities but to help them see how their behavior was affecting others. They agreed to work on those behaviors.

The above sources of conflict are only the tip of the iceberg. And if you think of conflict as an iceberg, you will remember that there is something even bigger below the surface! When people try to resolve their conflicts, they typically only address the surface issues that they can see. But it is the factors below the surface that often go unsolved which can lead to future conflict. These submerged conflict sources include misperceptions, fear, mistrust, hurt, and saving face.

Misperceptions and Fear:

On a daily basis, all of us use our life experiences, knowledge, and training to translate or perceive situations. A great deal of conflict is caused by our misperceptions of a situation. Often, misperceptions cause unnecessary fear which subsequently lead to conflict. For example, when organizations go through change, employees immediately perceive that their jobs are in jeopardy, and they act accordingly. They might refuse to engage in discussions about how to make successful changes, or they may stop working together as a team for fear the other person perform better and subsequently take their job. There may actually be no truth to their perceptions, but unless their fears are addressed quickly, conflict will continue to spiral down.

Mistrust:

One of the biggest sources of conflict between a manager and employee is mistrust. A conflict situation cannot begin to be resolved until trust has been re-established between the disputants. Consequently, we must first mediate the conflict from the submerged source (mistrust) before we can actually mediate the surface conflict.

Hurt:

Where there are misperceptions and mistrust, there is usually some hurt. If individuals perceive they have been lied to or that a promise was broken, they usually end up with hurt feelings. When people are hurt, they tend to behave irrationally, which leads to additional conflict. Again, the surface conflict may appear to be dissatisfaction with a promotion decision, but the real issue go deeper.

Saving Face:

Finally, another hidden source of conflict is people's desire to save face. No one likes to be wrong. It doesn't feel good. And what feels even worse to some is having to say "I'm sorry." President Clinton's now infamous speech admitting to an "inappropriate relationship with Monica Lewinsky" and "misleading the public" did not contain a apology to the American people. Why was that? According to the analysis which followed his speech, Clinton feels that an apology would have been a sign of weakness. In other words, in his attempt to save face, he mislead the public, so the conflict spiraled (and continues to spiral!). The need to save face can keep people locked into a conflict, and therefore, this source must be carefully mediated so that all parties can leave the process without embarrassment.

Understanding the sources of conflict is important to resolving it. The mediation process cannot even begin without correctly identifying the source.

Mediation Process

The mediation process has three basic steps: analysis, confrontation, and resolution.

Analysis:

Mediators need to know the source of the conflict before it can be mediated because each conflict may need to be handled differently. For example, let's say that two co-workers want the office with the window. It may be as simple as getting them to agree to toss a coin. The winner gets the window. But let's say one coworker perceives the other always gets her way or that there is a power imbalance. In this case, it doesn't really matter who gets the window: the real conflict is deeper than that, and mediating a coin toss has only resolved the surface conflict! Maybe an organization is going through restructuring, and positions and duties are changing. There may be a group or team of employees who are accusing each other of not doing their job or doing the job they aren't supposed to. As you saw in the YMCA example previously discussed, a strategy mediators use to address this conflict is to get parties to review and update all job descriptions so that everyone will better understand what they will be expected to do in the future.

Because of the different tools available for mediation, it is important that the analysis stage occurs first, followed by confrontation of the problem.

Confrontation:

Once mediators have determined the source of the problem, they typically use a four-step strategy to get individuals to confront the conflict:

Step 1: Stabilization of the setting:
At this initial stage, the mediator explains the process and gets disputants' commitment to go thorough the process. The mediator's neutrality is confirmed and confidentiality of the process if assured. Power and control is balanced.

Step 2: Positive communication between parties is fostered:
Here, both parties go through a "story-telling" phase. That is, each one gets to tell their side of the story without interruption by the other party. Often, one party may be reluctant to speak up. The mediator uses various techniques to get both parties to discuss key issues. One goal here is to get the parties to talk to each other. What I find is that conflicting parties have not even talked to each other about what is bothering them prior to coming to mediation. This may be the first time that parties find out just what's going on!

Step 3: Encouragement of negotiation:
Although mediators do not make decisions for the parties, they do help them explore alternative solutions to solve their conflict. When parties are so caught up in the emotions that result from conflict, they often build a wall to any solution. That is, initially they may believe "nothing will work." It is the responsibility of the mediator to help them break down that wall.

Step 4: Clarification of disputants' agreement:
This is part of the resolution stage which is discussed further below.

Resolution:

Here, parties usually put in writing what each of their responsibilities will be to ensure the resolution of the conflict and to prevent it from happening in the future. For example, in one situation I handled between an employee and a supervisor, the employee was upset because the supervisor would wait until the employee's six-month performance review to provide her feedback on her performance on a project that may have occurred several months prior to the review. Usually the supervisor's feedback was negative. The employee felt this was unfair because she was not being given an opportunity to correct her behavior for future projects when he waited so long to give feedback. After some discussion, the supervisor agreed. In their written agreement, which they decided to attach to the employee's most recent performance review, the supervisor agreed to tell the employee immediately when he felt she had not completed a project to his expectations. He also agreed that they would discuss how it could have been done differently.

Almost any organizational conflict can be mediated when this process is used correctly. As stated earlier, because of the success of mediation, an increasing number of organizations are developing a formal mediation plan and incorporating it into their grievance policies.

Mediation Plan

An organization contemplating adopting a formal mediation plan should consider the following guidelines:

Put together a team to decide the type of alternative resolution plan for your organization. The team should be composed of those individuals who will be most effected by the plan. Consider whether you want mediation, arbitration, or both. Remember your organizational culture as you develop your plan. If you known your culture will not ultimately support a mediation plan, but will support an arbitration plan, that's the plan you should go for.
Look at what's already in place. Most organizations already have a grievance plan that employees follow. How does the mediation plan fit into this?
Get complete support from management. If your managers are not going to support such a concept, it's a waste of time to do it. Remember, many conflicts are between supervisors and employees. If supervisors are unwilling to mediate with their employees, mediation will not work.
Define the type of disputes covered. For example, will all statutory employment discrimination claims such as age, sex, and disability discrimination be referred to mediation or will the plan just cover employee/supervisor relations and other non-statutory disputes?
Always have your attorney review the agreement. Although in recent years, formal alternative resolution plans have stood up in court, I would still recommend that you get your attorney's input in order to avoid serious legal challenges to the plan.
Make sure the formal plan is well communicated to all employees and that employees get a chance to help develop the plan and review it before it's final adoption.

The final step in developing a plan is deciding early on who will be the mediator(s) so that, when conflict does occur, it can be handled expeditiously.

Selecting a Mediator

To date, there are no national criteria or licensing requirements to be a mediator. Technically, this means that anybody can hang a mediator shingle. Therefore, it is up to the organization to carefully screen for and select a well-trained mediator. Many states, such as Virginia, have mediation programs that have been approved and certified by their state supreme courts. Mediators who are state-certified go through a rigorous training program, including interpersonal communication and effective problem solving, plus many hours of co-mediation, before they are certified by the state. Once certified, mediators must recertify every two years. Although there are many excellent non-certified mediators in business, selecting one who has completed a certified program may help protect against getting an inexperienced mediator.

Other considerations in selecting a mediator should include obtaining references from other organizations that have used the mediator and checking to see if the mediator has rapport with the staff. This can be done after the mediator has initially met with the disputants involved in a conflict situation. Asking disputants after they have met for the first time with the mediator if they feel comfortable continuing the mediation process with that particular mediator can help make the process more successful.

The most important thing to remember is that not all conflicts can be mediated. Considerations working against successful mediation include

When one party refuses to mediate, is absent, or incompetent
When the dispute involves a serious crime
When you need a court order to prevent immediate harm
When too much hurt or emotion has occurred.

Questions about mediation should be addressed to Bobbie Raynes, (540) 994-0845, braynes@runet.edu.

HR Humor

The following piece of HR humor was sent to me by an ACN reader in Minnesota.

A human resource director died this past weekend and upon arrival at the Pearly Gates, was informed by Saint Peter that she was the first HR director to make it to heaven. Because it was so unusual, and because all other HR directors were in hell, the divine decision was to offer the newly arrived HR director a choice. To make an informed choice, she was given 24 hours in hell and 24 hours in heaven to wander around and evaluate the environments.

After 24 hours in heaven, she was suitably impressed. Upon arrival in hell, she was pleasantly surprised to discover that in fact, all her friends from IPMA and SHRM were gathered in small clusters in a background that included a golf course, beautiful wood terraces, open bars, and apartments nestled in small groups in wooded and floral landscapes. She enjoyed the 24 hours and upon meeting with Saint Peter, she declared that she would chose hell as it seemed environmentally acceptable, and knowing about the Strong Vocational Interest Inventory and similar surveys, decided she would be happiest with her friends in which she had so much in common.

In a flash, she found herself once again in hell, only to discover that this time the landscape was barren, the people isolated, ragged, dirty, sweaty, and uncommunicative. She became at once immensely depressed and chancing upon the head meany, asked what happened to the beauty she had witnessed just the day before. "Oh, that," the devil said, "yesterday we were recruiting you, today you are staff."

Mike Aamodt, a Professor of Psychology at Radford University serves as our Associate Editor for the Technical Affairs column and as our unofficial humor editor. If you have a technical question you want answered/discussed, wish to comment on this month's article, or want to share a humor item please contact Mike. He may be reached by email (maamodt@runet.edu), phone [(540) 831-5513)] or fax [(540) 831-6113].