Mediating Workplace Disputes

1. Mediating Workplace Disputes Lewis and Clark SHRM December 14, 2011

2. 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

4. What Do You See?

5. 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.

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

7. 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.

8. Destructive Aspects of Conflict • Counter-productive expression of emotions • Distorted perceptions and judgments • Misattribution of causes of behavior • Unproductive or unethical behavior

9. 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

10. What People Want in Conflict • Voice and Procedural Justice • Vindication • Validation • Impact • Safety • Termination of Dispute and Satisfaction of Desires

11. Identifying Conflict Sources, Trends, and Costs Key Considerations for the Workplace For 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

12. Identifying Conflict Sources, Trends, and Costs Multi-Generational Workforce McDonald Marketing, 2010

13. Identifying Conflict Sources, Trends, and Costs 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 McDonald Marketing, 2010

14. Identifying Conflict Sources, Trends, and Costs Composition of U.S. Workforce • 50.17% Men • 49.83% Women McDonald Marketing, 2010

15. Imbedded Dimensions of Organizational Conflict The Five Most Common Types of Conflict in the Workplace • Interdependence Conflicts • Differences in Individual Work Style • Differences in Background/Gender • Differences in Leadership Styles • 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. Shelley Holmes, The Corporate Toolbox

16. Identifying Conflict Sources, Trends, and Costs 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 Mediate.com July, 2008

17. 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)

18. 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.

19. 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.

20. 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

21. 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.

22. 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.

23. 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

24. 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.

25. Implementation of DRP Program • Rollout to management. • Rollout to non-management: • New hires • Current employees • Opt-in • Opt-out • Evaluate system.

26. Training Training is a critical component of a DRP. • Negotiation and Communication • Ombudsman • Peer Panel • Mediation

27. 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

28. 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.

29. 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.

31. Thank You