Traditional Grievance Systems Are Toxic!

The prevention or attempted resolution of workplace disputes is an inevitable (if often unsavoury) focus for HR Practitioners.

Government in the UK has introduced initiatives via both the LRA and ACAS to encourage early forms of conciliation and mediation in order to avert the hefty numbers of tribunal claims reaching the system. Separately, leading HR thinkers have enthusiastically written about the benefits of alternative forms of dispute resolution as opposed to using traditional and often lengthy Grievance procedure. Not least Legal Island who have provided excellent guidance and training on the subject.

The question is, is it working?

Anecdotally, whilst tribunal claim numbers have been dropping, we are seeing very little change in organisational approach. Why? Could it be that whilst there is an acceptance of the benefits of alternative approaches, organisations (and their leaders) are often not convinced that deviating from traditional methods will reduce conflict and the costs associated with resolving disputes? We clearly to provide more compelling reasons to do so. Not least by illustrating through ‘in house’ case study, the potential toxicity of current approaches.

The approach line managers in your organisation will be taking to conflict and dispute resolution at this point in time is likely to be a reflection of the size and culture of your organisation. As HR Consultants at Think People, we are still seeing a wide spectrum of approaches, from the family run business who have little time for ‘lengthy procedure’ and favour more ‘kitchen table’ type resolution, effectively saying “sort this out now or you are out on your ear!” (which can leave employees feeling powerless and allow deeper issues to remain unresolved) to the other (and most common) end of the spectrum involving the preference for ‘procedure’, which more often than not, removes the ‘person’ from the process, favouring very specific process to dictate management of the conflict, which always provides an ‘outcome’, but which rarely provides a ‘positive vehicle’ for true resolution.

Traditional Grievance procedure is inherently toxic!

There is very often no room for the person with the Grievance to accept any personal responsibility in traditional process. The system is flawed from the start.

“I have an issue, I have to put that in writing, I must say how I wish it to be resolved....someone else will have to resolve it for me. I want my viewpoint validated and I want something to be done”

The reality is that when things are challenging, we often observe how people focus on the other's fault and contribution to the problem, while ignoring their own. This tendency to deflect responsibility is common in the workplace with employees blaming others while ignoring their own contribution to a problem. Conflict is rarely one sided.

When the employee is unable to address their challenge directly themselves, they turn to the third party, typically those with some power to address the situation in their favour.

By consistently deferring to ‘traditional’ Grievance procedure we are effectively encouraging a victim mentality. Traditional resolution can be toxic.

‘Toxic Triangulation’ occurs when a third person gets involved in the relational dynamics of two others. It occurs when the third person doesn't restore direct communication, and instead distorts it and either unwittingly or intentionally colludes with one of the parties.

"When people perceive that they are the low-power person in a conflict, their typical response is to try and form a coalition with another person....Three people find it difficult to maintain balance in a conflicted relationship. Usually they become structured as a "dyad plus one. Communication triangles are unstable, leaving one person out." (Wilmot and Hooker)

When the employer becomes the go between for communication and uses influence or positional power to address a challenge on another's behalf, they encourage a lack of balance in a communication triangle which is clearly inherently toxic! Effective resolution requires an equalisation of power between the two parties involved. Early mediation can do that by ensuring the mediator is neutral. Effectively facilitating rather than dictating outcome.

What of the latest research – conflict conundrum to mediation miracle?

In depth case studies on the impact of introducing early mediation are still relatively rare. A detailed study from ACAS published this year does however provide some insight, written by two academics who are expert in this field. The study, ‘Towards a system of conflict management? – An evaluation of the impact of workplace mediation at Northumbria Healthcare NHS Foundation Trust’ by Paul Latreille and Richard Saundry, can be downloaded from the ACAS website.

http://www.acas.org.uk/media/pdf/5/7/Conflict-management-Northumbria-HealthcareNHS-Trust.pdf

The research looks at the impact and benefit of introducing an integrated and strategic conflict management system including early mediation. Is workplace mediation the ‘miracle cure’ to all conflict at work or is there a lack of substantive evidence? The research paper looks at the impact over the past 10 years of introducing a system of conflict management into the Northumbria NHS Trust. The result is 50 pages of data, analysis and insight based on documentation review, statistical analysis, interviews and survey.

Unsurprising data..

1. The research confirms that personality clashes are by far the most common cause of conflict with 34% of the Trust managers surveyed putting it at number one, with poor performance management coming in next at 9%.

2. The most damaging result of conflict is wasted management and staff time, as indicated by 60% of the managers surveyed.

3. Of all the cases that went to mediation 90% reached an agreement and three months after the mediation, of those who replied to the evaluation, 60% agreed that the mediation had been at least 50% effective. The report highlights the key success factors when setting up a mediation scheme, in particular the need to have the right stakeholders bought in (specifically the unions in this case), best practice of drawing internal mediators from right across the organisation and the importance of internal promotion.

Some less obvious data..

Whilst many organisations have introduced mediation schemes, the NHCT have avoided seeing mediation as an additional operational tool, and instead have positioned it as a leading element in an overall approach which encompasses a range of preventative and early intervention methods. Conflict management is a critical element of the organisation’s approach to employee wellbeing and engagement, and as such is elevated to a more strategic level.

The impact of this is significant.

4. Almost 60% of those surveyed expressed a preference for informal resolution of workplace problems compared with 13% who preferred formal. We often assume the majority of those aggrieved prefer a traditional and formal approach.

5. The survey showed that amongst the most senior managers 73% valued conflict handling ability as a ‘critical’ or ‘very important’ skill.

Effectiveness

The study does give some compelling evidence. In 2011 the Trust’s grievance and disciplinary rates were 0.25 and 0.9 respectively per 100 employees compared to average public sector workplace rates of 1.3 and 4.8. Perhaps even stronger is the evidence of the NHS Staff Survey where in 2005 NHCT were 2% above the NHS average for staff reporting bullying and harassment and 7% above for staff suffering from work related stress. By 2014 there had been a major turnaround with NHCT being 6% below the average on bullying and harassment and 5% below on work related stress.

The report falls short of quantifying the financial cost/ benefit analysis which would provide a very useful and compelling argument for business leaders, so perhaps the ‘mediation miracle’ terminology is a little strong, but the report does show that the NHCT has made an outstanding and contribution to the organisation culture by introducing conflict management at a strategic level.

When Mediation may not be suitable

Mediation, as a form of ADR, is not always suitable or appropriate and should no be used in the following circumstances:

• Mediation should not be used as a first resort – because people should be encouraged to speak to each other and talk to their manager before they seek a solution via mediation;
• If it is used by a manager to avoid their managerial responsibilities;
• When a decision about right or wrong is needed, for example where there is possible criminal activity;
• If the individual bringing a discrimination or harassment case wants it investigated;
• If someone has learning difficulties that would impair their ability to make an informed choice;
• If an individual is particularly vulnerable;
• If the parties do not have the power to settle the issue;
• If one side is completely intransigent and using mediation will only raise unrealistic expectations of a positive outcome.

Good practice top ten tips;

1. Mediation is not a universal remedy for conflict between individuals and there are some situations where it will not be suitable – for example, if an individual bringing a discrimination claim wants it to be investigated.
2. Mediation is a voluntary process and should only be used where both parties are willing to try to resolve their differences in this way.
3. Confidentiality is a key element of mediation – anything said during the process should stay in the room and not be disclosed to line managers or HR, unless mutually agreed.
4. There is no one best approach of mediation and the type of arrangements in place should suit the organisation and its culture. For some, an internal scheme is more appropriate, while for other workplaces external mediation may be the only viable option. Others may choose to use a combination of the two. Some of the factors to take into account when deciding whether or not to opt for internal or external mediation arrangements include cost and the size of the organisation.
5. If launching an internal scheme, mediators should be drawn from across the organisation and trained and supported in their role.
6. There are no strict rules on when mediation can or cannot be used – it can potentially be used at any stage in the conflict cycle, including after a formal dispute has been resolved to rebuild relationships.
7. Mediation is most effective when used in the initial stages of a disagreement in the workplace, before the parties become too entrenched in their views.
8. Some workplace disagreements are particularly suitable for using mediation – for example, relationship breakdowns and some bullying and harassment cases.
9. Any organisation introducing mediation should gain buy-in for it from employees, managers and trade union and employee representatives.
10. Mediation arrangements need to be promoted across the organisation and managers encouraged to use them.