JAMS ADR Insights
Resolving Workplace Disputes - Putting Out the Fire
Published September 6, 2011
Back in January, the British government proposed increasing the use of mediation in workplace disputes and a recent article in a UK Human Resources publication discussed how beneficial that would be for all parties involved and also recommended measuring tactics and tools. Given the rise of mediation in employment disputes in the United States, we asked one of our employment neutrals based in Southern California, Alex Polsky, to submit a guest post on the process and benefits of utilizing a third party neutral to resolve a workplace dispute.
Nothing can divide a work group and drag down productivity like an unresolved employee dispute. Often there is an employee complaint and Human Resources sets interviews with the relevant persons. The employee is concerned about a set up. The company is worried about disruption and future claims. There is risk that an internal HR review will make problems worse. Despite these valid concerns, keep in mind there are alternatives to help resolve these employee disputes.
Neutral fact-finding is a process oriented dispute resolution vehicle. It puts the resolution in to the hands of a neutral third party. It works best when embedded in the corporate culture through HR policy and structured in an environment where the HR department, the manager or the employee can request it. Most importantly, it also works best when the parties consent to the process rather than have it imposed upon them.
After submitting a form with all the pertinent details about the complaint and interested parties, a third party neutral is selected. That neutral will then walk the parties through the process, take interviews and investigate the complaint. Finally, after collecting all the facts and details, the neutral will draft a report with their conclusions and recommendations.
The single most significant advantage of neutral fact-finding is that by inserting a review level that is not connected to management, a greater sense of neutrality is assured. Employees are more comfortable and more candid when they are assured that specific comments will not be attributed to them and that their personal opinions will not be communicated to co-workers or management. Neutral fact-finding reduces these concerns.
As a voluntary administrative remedy, neutral fact-finding should fall within the mediation privilege, and neither the results nor the investigation be subject to disclosure or discovery beyond the scope of the parties involved in the investigation. In those situations where the findings are not binding, the neutral fact finder or a third party should be permitted to utilize the findings in an effort to obtain a voluntary agreement. Corporations have found that utilization of a neutral fact finder who is also a skilled mediator permits the transition from investigation, to report, to a mutually agreeable resolution.
A process that provides an outside review of employee grievances, that includes even-handed fact-finding and provides stated conclusions, is an effective and constructive method of resolving workplace disputes. The earlier it is undertaken, the sooner people get back to work.
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