Mediate to Alleviate Conflict

By Chelse Benham

"If we cannot talk together, we cannot work together...interaction must not only create agreements...it must also use the conflict to help fuel the discovery of new insights and sustainable learning." --William Isaacs, author of “Dialogue and the Art of Thinking Together”

Americans will spend, on average, 90,000 to 100,000 hours at work during their lifetimes. In fact, using data from the Current Population Survey of the United States, Juliet Schor, author of The Overworked American, finds that the average American actually added 199 hours - five weeks - to his or her annual work-time between 1973 and 2000, a period during which worker productivity per hour nearly doubled. According to the International Labor Organization, Americans now work 1,978 hours annually, a full 350 hours - nine weeks - more than Western Europeans on average.

During all those hours at work, it is highly likely things aren't always going to go our way. As a result of the many hours spent at work, abusive workplace situations have brought about a number of laws meant to protect employees and employers. Some of the disputes filed each year seek protection under the following:

Title V11 of the Civil Rights Act of 1964 Equal Pay Act

Age Discrimination in Employment Act

Rehabilitation Act of 1973

Title 1 of the Americans with Disabilities Act

Civil Rights Act of 1991.

It's normal for disagreements and personality clashes to arise at work. That’s because when conflict occurs it can escalate due to miscommunication and bring about powerful feelings of frustration, distrust and disrespect making people adversarial and aggressive. However, going to court may not be the best solution.

Jenelle Soderquist, senior consultant at the Mediation Center for Dispute Resolution at Hamline University, describes five different responses to conflict and they are: accommodation, avoidance, collaboration, referral to a higher authority and force. Force and avoidance are the more negative and less

productive methods to conflict resolution, while accommodation extracts a high personal price from the person accommodating. Thus, the process of referral to a higher authority and collaboration are more commonly used in workplace disputes, but both differ greatly. One involves conflict – a battle to persuade the higher authority which party is right, thus creating a win-loose situation. The other entails collaboration – a constructive process of the parties working together to resolve issues. The latter uses mediation to affect change and it has a win-win outcome.

“The advantage to mediation is that the mediator is looking for a win-win solution. Very often at the end of mediation there’s no rancor,” said Dr. Jose Llanes, professor in Education Leadership at The University of Texas-Pan American and a member of the American Arbitration Association. “Usually you are mediating between two parties who have authority to act.”

Mediation places the resolution back in the hands of the parties involved to work out an acceptable solution. It is flexible, non-binding, informal and confidential. Mediation helps move the situation away from the cycle of conflict and provides resolution in less time and at less cost to companies than accessing the courts.

At www.eeoc.gov Donna M. Gwin, director of Human Resources for Safeway, Inc. states “As a result of mediation, we are able to keep our pending Equal Employment Opportunity Commission (EEOC) complaints to a minimum and avoid the time and money it takes to investigate and respond to a claim.”

The article also states that since 1999, EEOC has mediated more than 50,000 cases with approximately 70 percent being successfully resolved in an average time of 85 days, nearly half the time it takes to resolve a charge through the investigative process. Commissioner Leslie E. Silverman, who has made the EEOC’s National Mediation Program one of her top priorities, said, “Mediation is a win-win approach because it saves time and money, is non-adversarial and often results in favorable outcomes for all parties.”

Llanes described mediation as a process that identifies the issues, determines the parties’ positions, determines the most important issues to the people involved and looks at the various solutions. He described the mediator as an impartial third party facilitator whose role is to extract communication between the parties and encourage an agreeable resolution for such workplace matters as harassment, work performance issues, termination, discipline and business.

“There are two types of mediation. One is where you’re trying to reach common ground by making suggestions and the parties agree on their own. The mediator keeps the dialogue moving and make suggestions,” Llanes said. “Arbitration or “binding” arbitration is where a third party is hired to come in and decide on a solution. The arbitrator’s decision is binding. This is used in lieu of going to court

because the legal process is more expensive. However, unless the situation calls for binding arbitration as the next step, people tend to go to court when mediation fails. Arbitration is usually suggested by a judge at that point.”

Unresolved workplace conflicts take an enormous toll on people inside and outside the conflict, thus inflicting personal, social and economic costs. Family Services Saint John in Canada outlines clearly these debilitating costs:

Personal Costs:

anxiety, resentment, bitterness, anger stress, strain dissatisfaction with work, disinterest, loss of motivation physical or psychological illness marital or personal problems

Social Costs:

negative workplace environment declining morale deteriorating relationships withdrawal from participation in workplace events

Economic Costs:

increased absenteeism increased sick leave decreased productivity increased accidents

With the use of mediation these costs can be reduced. By using mediation as a first step in conflict resolution, the Multnomah County Sheriff’s Office, in Multnomah, Oregon, understands the enormous savings in time and money mediation provides. The office presents several reasons why it is possible to arrive at a solution that works for both parties rather than relying on the court system:

Mediation is more informal than an internal investigation, filing with a human rights agency or litigation.

The parties own the process and the solution. Solutions that are agreeable in mediation might never be advanced in a

win-lose model of problem solving. Both parties are introduced to new methods of communication and

problem solving. Mediation can result in the agreement to refrain from objectionable

behavior without being preceded by an admission of wrongdoing.

Mediation may have a quicker and more long-lasting resolution than win-lose situations. It allows the employer to take quick and appropriate action.

Mediation is confidential. The process may prevent an incident from having a long life in the rumor mill, as is often the case during a formal investigation.

Participants are frequently more able to commit to a solution which they have formulated rather than one which has been forced on them.

Conflict is a part of the world we live in and it can affect all areas of life. Work is no exception and can in fact be a major source of conflict. There is a time and place for mediation, arbitration and litigation, but perhaps that is the order it should take. Rather than jumping into litigation parties should evaluate situations through communicating first using a mediator to help bridge the differences in a positive and effective manner. Who wouldn’t take the odds of a win-win situation?

“To carry a grudge is like being stung to death by one bee.” - William Walton, (1902 - 1983) considered the most important English composer of his generation