mediating workplace disputes

LEWIS AND CLARK SHRMDECEMBER 14, 2011

Mediating Workplace Disputes

Learning Objectives

• Perceptions and Conflict Management• Conflict: Sources and Trends• Imbedded Dimensions of Organizational Conflict• Assessment of Conflict Management Strategies• Develop and Implement a Dispute Resolution

Program

What Do You See?

Perceptions

• Help us make sense of the world. We fill in information to fit some pattern we know.

• Are not “right” or “wrong;” they just are.• Can limit our options for acting.• Can be changed. We can learn from each other.• My perceptions make perfect sense to me.• You don’t have to agree with someone’s

perceptions to understand and respect them.

Sources of Differing Perceptions

• Economic Background• Parent’s Political Beliefs• Veteran/Non-Veteran• Educational Background• Myers-Briggs type• And lots of others

Perceptions and Conflict Management

• Discovering interests is an exercise in discovering perceptions.

• Appreciating perceptions helps us distinguish between people and problems.

• We tend to attribute different behavior to “badness.” Often it comes from having a different perception.

• Understanding perceptions can expand the range of possible solutions.

Destructive Aspects of Conflict

• Counter-productive expression of emotions

• Distorted perceptions and judgments

• Misattribution of causes of behavior

• Unproductive or unethical behavior

Constructive Aspects of Conflict

• Generate creative energy

• Improve the status quo

• Reduce latent tensions/bring the conflict into the open

• Clarify objectives

• Establish group boundaries and norms

What People Want in Conflict

• Voice and Procedural Justice• Vindication• Validation• Impact• Safety• Termination of Dispute and Satisfaction of Desires

Identifying Conflict Sources, Trends, and Costs

Key Considerations for the WorkplaceFor the first time in American history we have

four generations working side-by-side; the composition of men and women is equal; and our culture is more diverse than ever before.

This affects your:• Organizational Culture• Ability to Manage• Exposure to Employment Legal Issues

Matures65 +

Boomers46-69

Gen X34-45

Gen Y19-33

Leadership Style

•Direct•Command and Control

•Consensual•Collegial

•Everyone is the same•Challenge Others•Asks Why

TBD

Interactive StyleIndividual •Team player

•Loves to have meetings

Entrepreneur •Participative•Fun

Communication Style

Formal In person DirectImmediate

•Email•Voicemail•Texting

Feedback and Reviews

•No news is good news•Satisfaction in a job well done

•Don’t appreciate feedback•Money•Title

•Sorry to interrupt, but how am I doing?•Freedom is the best reward

•When I want it•Push of a button•Praise Me•Meaningful work

Multi-Generational Workforce

Identifying Conflict Sources, Trends, and Costs

McDonald Marketing, 2010

Identifying Conflict Sources, Trends, and Costs

McDonald Marketing, 2010

An Example of our Evermore Diverse Population

U.S. Asian Composition•22% Chinese •18% Filipino •16% Asian Indian•11% Vietnamese•10% Korean•8% Japanese•15% Other

Identifying Conflict Sources, Trends, and Costs

McDonald Marketing, 2010

Composition of U.S. Workforce•50.17% Men•49.83% Women

Imbedded Dimensions of Organizational Conflict

Shelley Holmes, The Corporate Toolbox

The Five Most Common Types of Conflict in the Workplace

1. Interdependence Conflicts2. Differences in Individual Work Style3. Differences in Background/Gender4. Differences in Leadership Styles 5. Personality Clashes All types of conflict in the workplace can be messy but it is the

differences in personality that cause the most trouble.

Statistics show that 85% of terminations in the U.S. are due to personality conflicts.

Identifying Conflict Sources, Trends, and Costs

Mediate.com July, 2008

Costs Associated with Workplace Conflict

•Team members preoccupied with interpersonal conflicts and unmanaged differences lead to loss of productivity

•Middle management is spending more than 50% of their work day on conflict resolution

•On average, defending a litigated employment claim costs $130,000 and takes approximately 2.5 years before a civil trial begins

Assessment of Conflict Management Strategies

Becoming Dispute Wise

•Companies must understand that becoming ‘dispute wise’ is not a cost, but a savings; not a luxury, but an essential part of running a business.

•Businesses do not focus on using Dispute Resolution to resolve internal workplace conflict even when they use it to successfully resolve lawsuits.

•Companies must be committed (at the top) to manage organizational conflict through an effective Dispute Resolution Program (DRP)

Developing a Corporate DRP System

A DRP system may come in many different sizes and shapes.

The complexity, cost and design of a system depends, in part, on:

• The number of employees.• The level of internal conflict.• The conflict resolution skills of management at

all levels.

Startup of a Corporate DRP System

Getting Started

• Review current litigation costs.• Review hidden costs of unresolved conflict which

may be measured by an examination of retention, absenteeism, extended medical leave, workers’ compensation claims and compliance complaints.

Startup of a Corporate DRP System

Foundation of a Successful System

• Recognize a philosophy of openness• Recognize impetus for change• Acknowledge business case for DRP• Align with internal champion• Conduct an internal assessment• Create plan to achieve goals• Identify DRP administrator

Startup of a Corporate DRP System

Key Elements of a Successful System

• A process that allows individuals to be heard.• A process where individual responsibility is

encouraged.• A means to keep decisions in the hands of those

closest to the problem.• Easy to access.• Multiple access points.• Is a supplement, not a replacement, for legal redress.• An avenue to address the goals unique to the

organization.

Startup of a Corporate DRP System

A Dispute Resolution System is “Not”

• Where rules replace common sense.• Where anxiety over the system replaces anxiety

over the problem.

Common Components of a DRP System

• Negotiation between the parties• Open-door policy• Go to direct supervisor• Go to any member of management• Go to any HR staff member

Effective DRP: External Components

Beware of program’s limitations:

• Cannot significantly impair rights under federal law.

• Must provide same substantive and procedural rights under federal laws.

• Should expressly state that DRP provisions do not preclude employee from filing administrative claims.

Implementation of DRP Program

• Rollout to management.• Rollout to non-management:• New hires• Current employees

o Opt-ino Opt-out

• Evaluate system.

Training

Training is a critical component of a DRP.

• Negotiation and Communication• Ombudsman• Peer Panel• Mediation

Covered Claims

Examples of covered claims appropriate for resolution under a DRP:

• Employment Discrimination• Retaliation• Workplace Accommodation• FMLA• Tort Claims• Violation of Public Policy• Unpaid Wages/Compensation Issues

Excluded Claims

Examples of claims to exclude from resolution under a DRP:

• Claims for benefits that are covered by special appeals procedures (ERISA).

• Worker’s Compensation or Unemployment Compensation

• Breach of an employee’s non-competition, non-solicitation, fiduciary or confidentiality obligations.

• Claims against an individual supervisor not made against the employer and that do not involve conduct within the scope of the supervisor’s employment.

Excluded Claims

Examples of claims to exclude from resolution under a DRP:

•Criminal claims referred to or handled by law enforcement agencies.•Claims expressly excluded by law.•Challenges to operational business decisions such as restructuring, reorganizing or downsizing.•Class/collective actions.

Thank You

Nathan J. Plumb, J.D.Ogletree Deakins

nathan.plumb@ogletreedeakins.comwww.ogletreedeakins.com

314-802-3935

Tamra Wilson Setser, J.D.Robert E. Miller Group

tamraws@millercares.com www.millercares.com

816.308.4554