Workplace Disputes: Continuum of Dispute Resolution

dispute resolutionA recent discussion I had with a group of business people at various stages of their careers is the genesis for this blog posting.  In the discussion, we were talking about the different dispute resolution processes we might use to resolve a dispute that was happening in their workplace.  In the course of the conversation, two things became clear.  First, we were not all using the various dispute resolution terms in the same manner.  Second, we were not all clear on when the various tools might be used to resolve workplace conflict and the pros and cons of each of the processes.

In that discussion, I found myself sketching out on a piece of paper a dispute resolution continuum.  My simple sketch got us through that conversation, but when I got back to my office I decided to “pretty it up” a bit and created the following chart.

Defining the Dispute Resolution Processes

Before I discuss the continuum, I think it’s important to define the common dispute resolution terms.

     Negotiation

In negotiation, two or more parties discuss directly their conflict and try to resolve it.  There are no third-parties involved.

     Mediation

In a mediation, the parties in conflict ask a third-party (the mediator) to try to help them resolve their conflict.  The mediator is a neutral and does not decide what is “fair” or “right.”  Rather, the mediator’s role is to moderate and guide the process in an attempt to bring the parties together by defining issues and eliminating obstacles to communication.  Although a mediator may point out to the parties potential strengths or weaknesses in their positions in an effort to help facilitate resolution, the decision making power remains always with the parties to the conflict.

     Arbitration

In an arbitration, the parties to the conflict have agreed that a third-party (the arbitrator) will hear the evidence presented by each of the parties and make a decision.  The arbitrator’s decision can either be binding on the parties or non-binding depending on the terms of the parties’ arbitration agreement.

     Litigation

Litigation is the term used to describe the filing of a lawsuit in court and the process that follows the filing of the lawsuit.  Most commonly in litigation involving workplace disputes, issues of law are decided by a judge and issues of fact are decided by a jury.

The Continuum of Dispute Resolution

Dispute Resolution Continuum

 

In looking at the dispute resolution continuum several things become clear.

Parties Retain Control on Left and Cede Control on the Right

The first thing that jumps out at you in looking at the continuum is that as you move from the left to the right the parties increasingly cede control for decision making to a third-party.   Now many readers may think — well that’s not so bad.  Sometimes you just can’t resolve a workplace dispute and it’s better – easier – to just hand the issue to a third-party and let them decide.  Maybe.

When I discuss the potential of having a jury decide a dispute with parties in a mediation, I often ask them whether they agree with who gets voted on and off of “American Idol” each week.  I know I don’t.  Those same voters are members of the jury pool.  If you are the person involved in a workplace dispute query whether you want to make the decision of how to resolve the issue or whether you are comfortable turning it over to the “American Idol” voters.

     The Likelihood of a Win-Lose Answer Increases as You Move to the Right 

As you move to the right on the continuum, the parties also increase the likelihood that one of them will be a loser and one of them will be a winner.  Notice the missed opportunity for a win-win resolution.

     Monetary and Non-Monetary Costs Increase as You Move to the Right

Costs of lawsuits include not only the legal fees that each of the parties will pay their attorneys, but also fees associated with court filings, depositions and expert witnesses.  For the employee, there is also the reality of foregoing a regular paycheck if he or she is not working.

There are also the non-monetary costs.

            Non-Monetary – Employers

For employers, there is the productivity drain that an on-going workplace dispute causes.  Research shows that simple incivility or bad behavior in the workplace (much less the distraction caused by a pending lawsuit) has a significant cost.  According to research by Professors Christine Pearson and Christine Porath reported in their book THE COST OF BAD BEHAVIOR:  How Incivility Is Damaging Your Business and What To Do About It, among workers who’ve been on the receiving end of incivility:

• 48% intentionally decreased their work effort
• 47% intentionally decreased the time spent at work
• 38% intentionally decreased the quality of their work
• 80% lost work time worrying about the incident
• 63%   lost work time avoiding the offender
• 66% said that their performance declined
• 78% said that their commitment to the organization declined
• 12% said that they left their job because of the uncivil treatment
• 25% admitted to taking their frustration out on customers

           Non-Monetary – Employees

For the employee, there is the personal distress.  As Atlanta plaintiff’s attorney Steve Mixon explains, “employees cannot start their real healing until the lawsuit is over.  While the lawsuit is pending, employees are forced to essentially re-live what happened every time they have to answer their attorney’s questions, respond to discovery or give testimony.”

     The Workplace Dispute Becomes More Public as You Move to the Right

One of the biggest benefits to employees and employers who can successfully resolve their dispute in either negotiation or mediation is that they can agree to keep the resolution – and perhaps even the dispute – confidential.  In a workplace dispute, this can be particularly beneficial to both the employee and the employer.  Depending on the terms of the arbitration agreement, it is also possible to have an arbitration and the arbitration decision kept confidential.

By contrast, litigation is public.  I think it is particularly important for parties to a workplace dispute to understand this point as it is increasingly easy for any interested party to go on-line and read all of the various documents that make up a lawsuit.  As such, investors or potential buyers of a company will often, as a part of their due diligence, read court pleadings to get a feel for the corporate culture.  Similarly, potential employers might read court filings as a part of their reference checking.

Insights for Employees and Employers

Control your own conflict.  Sit down and talk to each other face-to-face and see if you can negotiate a resolution.  If you can’t do it on your own, retain an experienced mediator who knows the applicable laws and can work with you to find a win-win resolution.

Do not turn your dispute over to a jury.

Remember, juries are comprised of the same folks who vote for our “American Idol” each week.

To learn more about mediating a workplace dispute and how to prepare for a mediation, click here.   

 

 


Comments

Workplace Disputes: Continuum of Dispute Resolution — 8 Comments

  1. Reading your article I found myself disagreeing with your definition of mediation and consider that what you are describing is a combination of mediation and conciliation (the latter being when ever the mediator moves out of his or her neutral role to provide some form of advice).

    • Ernest, thanks for your comment. Your comment raises the excellent point of ensuring that the mediator and parties (and their counsel if they are represented) are in agreement of the style(s) of mediation process to be used in the mediation. Unlike when we first began using neutral mediators and the mediation process to resolve workplace disputes, mediators today have more than just the traditional facilitative process of mediation available in their tool box. The evaluative and and transformative processes are also accepted. I agree with Professor Leonard Riskin’s view of the effective mediator in that an effective mediator needs to have all of these potential process tools available and that he/she must also have the subject matter expertise and professional experience to know when and how to use them most effectively.

      Here are cites to two of Professor Riskin’s writings in this area you may find of interest:

      (1) Leonard L. Riskin, Mediator Orientations, Strategies and Techniques, 12 ALTERNATIVES TO HIGH COST LITIG. 111 (1994); and
      (2) Leonard L. Riskin, Understanding Mediators’ Orientations, Strategies, and Techniques: A Grid for the Perplexed, 1 HARV. NEGOTIATION L. REV. 7, 23-24 (1996).

      • Dear Lorene,

        You seem to have ‘brushed off’ my criticism of the original as unimportant. However I still maintain that conciliation is most definitely not mediation.

        You then go on to advocate that mediators ‘need’ to have a range of skills to be ‘effective’. I perceive that you are dressing up what is in fact a ‘should’ and to my ear that is a danger signal and you will never inveigle me down that pathway of irrationality.
        Having said that, I practice a dual set of techniques skills, my original interest based model plus a more specialist model of the narrative technique, but I wouldn’t agree that this expanded skill-set is mandatory or even necessarily desirable.

        Lastly, you acknowledge the possible presence of solicitors and barristers within the mediation process. Within my experience covering in excess of twenty years, lawyers unconstrained represent wild cards that will most likely derail the process and disadvantage their clients’ interests. Although I have had some notable exceptions to this trend, lawyers are best able to serve their clients in mediation when they are directed up front that they are simply support and advice operators within the mediation process.

        Ernest Treagus.

  2. Lorene,
    Thank you for this excellent visual that makes it easy to see key benefits of mediation. People under great stress need to see to understand.
    You could add a similar continuum line at the bottom, as you note in your explanation, for more private-less private.
    Your excellent diagram works for all disputes, of course, so I’m glad you called it (without restriction) “Dispute Resolution Continuum”.
    Excellent work!

  3. Ernest: Thank you for sharing your perspective and experience with my readers. I note your use of the terms “solicitor” and “barrister” and suspect your practice is in Australia as we do not use those terms in the U.S. Unlike your experience, my experience with lawyers here in the U.S. is that they are very helpful to their clients in a mediation and also very supportive of the use of mediation to resolve workplace disputes. Lorene

  4. Hi Lorene,

    A nice article that helps those not familiar with the terms, processes and options of dispute resolution and management. Many people think their only option is to “lawyer up”, which is some cases may be the most appropriate step. The difficulty is getting the word out about the other options and clarify their differences. I think your article helps with this.

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