Win, Win: Conflict and mediation in the workplace

Successful ADR results in savings in costs and time, an increase in employee morale and productivity and an improved reputation in the job marketplace.

Department of Defence

“Conflict can be fatal,” says Helen Marks, director of alternative dispute resolution and conflict management for the Department of Defence. “A strong cohesive, highly motivated and committed team is vital in somewhere like Iraq at the moment,” she says.

Marks was a military officer for 29 years, rising to the head of the navy’s legal corps, but has recently become a civilian employee of the Department of Defence in Canberra. In 2002, using the philosophy that prevention is better than cure, she set up an alternative dispute resolution and conflict management team of five people that now services 100,000 military and civilian personnel working for the Australian army, navy and air force.

Marks says that the most common disputes she sees are disagreements on the way work should be done, bullying and general harassment. “They are mostly the result of poor communication, unprofessional behaviour or work performance issues. Many are supervisor versus subordinate but some are an individual versus the organisation,” she says.

There has always been a formal process to redress grievances in Defence, including a complaint mechanism around harassment and discrimination, but the use and management of ADR was officially launched in June 2003. Personnel can self refer, or ADR can be command or management initiated, and is always command or management approved – it is a completely voluntary process.

An intake assessment is completed with all parties to a dispute and the most appropriate dispute resolution technique is chosen. Choices include internal or external mediation, workplace conferencing or facilitated negotiation. For those not predisposed to mediation, Marks has recently introduced 1:1 conflict coaching. (See box for definitions).

Individual examples are difficult to describe, due to confidentiality agreements. However, Marks says they have had good success with resolving long running disputes that pre-dated Defence’s ADR initiative. Naturally, she advocates early dispute resolution. “The emotional and dollar cost for the individual and the organisation is much less if the dispute is resolved early and handled well,” she says.

Defence has an extensive, thorough and ongoing professional development and assessment program for its internal mediators, which now number 44. Marks says they are very selective about their use of external mediators. “We have a duty of care to our employees, so the external mediator has to be professional and effective. The advantage of using external mediators is that they are perceived to be impartial, but the disadvantage is that they are also very expensive and don’t necessarily understand the culture of the organisation,” says Marks. She does concede that internal mediators all have other duties from which it may be difficult to be released and they also don’t yet have an advanced skill base that may be needed for large disputes.

The key to successful outcomes is to be creative – everything is potentially possible, according to Marks. “Many disputes are like icebergs. The issues that are below the waterline are a lot different to what has been presented. Dispute resolution is not a template process.”

Marks is a self-confessed optimist. “You have to be a hopeful and positive person who is comfortable dealing with ambiguity. You have to understand your organisation, its culture and needs. Mostly, you need to remove people from the conflict and show employees that you value them and hope they will re-engage with the organisation,” she concludes.

Mars Inc.

Mim Gaetano is, to his knowledge, the only internal ombudsman employed by private enterprise in Australia. Mars Inc., the global FMCG company, introduced ombudsmen into its organisation about eight years ago, creating his Asia-Pacific ombudsman’s role in 2002. Gaetano is not affiliated with HR, but reports to Mars’ corporate ombudsman who then reports directly to the CEO. Gaetano has been with Mars for 18 years, starting as a scientist but now doing postgraduate studies in conflict resolution. It is a generally accepted view that ombudsmen should have a good knowledge of the organisation and that a full-time role can cover around 7,000 employees.

The role at Mars was not created because they had particularly bad problems, but was more of a proactive approach to prevent disputes from escalating and to monitor the general nature of problems. Gaetano says that the conflicts he sees are no different to those in other businesses. “They are usually performance management, work environment or line manager issues,” he says. The ombudsman program is available to individual employees only.

Mars employees have a choice of three paths to settle conflict. They can pursue a formal grievance procedure through HR, discuss things with their line manager or go to the ombudsman. The choice is theirs entirely.

Gaetano says that his role provides three unique offerings to employees. “I offer independence and neutrality and I guarantee confidentiality if requested by the employee,” he says. He most often provides 1:1 coaching or facilitation for dispute resolution and has seen disputes take anything from a few minutes to many months to resolve. “There are a lot of disputes that cannot be resolved at the level they occur. You need the parties to be willing, honest and open with each other to get a satisfactory outcome,” he says.

Gaetano says they have not yet performed ROI analysis on the ombudsman’s position, but are conscious that they need to. “We are always conscious of the costs and the need to provide a satisfactory ROI,”he says. Gaetano says that if you manage to keep two to three valued employees in a year that would have otherwise resigned or been replaced, you’d go a long way in covering your costs. “The best outcome is to resolve issues early, as that is the best outcome for all parties involved,” he says.

Gaetano believes that dispute resolution in organisations must utilise a multifaceted approach. “One size does not fit all. Disputes involve people and because we are all different, the more avenues provided to resolve a dispute internally, the better it will be for all,” he concludes.

The role of the industrial arbitrator

Ian Cambridge has been a commissioner at the NSW Industrial Relations Commission (IRC) for eight years, and has observed that the forces of gravity apply in conflict. “It’s the small things that float to the top. Trifling issues can spurn bitter conflict and these are the hardest issues to resolve,” he says.

The law in NSW allows any employer to lodge notification of a workplace dispute with the commission, which is an independent statutory tribunal –and free of charge. Conciliation is mandatory and if that fails, the dispute can be escalated to a legally binding arbitrated solution. However, non-binding determinations are available upon request.

The vast bulk of the issues Cambridge hears are unfair dismissal claims. “I still see instances where the process to dismiss is poor, as are the investigations conducted into incidences. Many people are denied natural justice,” he says. Cambridge stresses that an organisation’s systems must be open and fair and that employees should be presumed innocent until proven guilty. “At the very least, you shouldn’t type out someone’s letter of dismissal before meeting with them to investigate or discuss a problem, but you’d be surprised how many people still do it,” he says.

Cambridge believes the NSW IRC could be accessed by more organisations as another avenue for conflict mediation. “The best solutions are in the hands of the parties and the Commission helps them find those solutions,” he concludes.

Clarification on conflict and mediation

Mediation is a process in which the parties to a dispute, with the assistance of an impartial third party, identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement.

Workplace conferencing is a meeting of people who have been affected by an incident or dispute, bringing together those most directly involved, including management, colleagues and sometimes family and friends.

Facilitated negotiation is a process in which the parties to a dispute, who have identified the issues to be negotiated, utilise the assistance of an impartial third party to negotiate the outcome.

Conflict coaching assists people on a one-on-one basis to improve their effectiveness in handling conflict and resolving disputes.

For more information about the role of an ombudsman, contact Mim Gaetano at [email protected] or see www.ombuds-toa.org