Conflict Resolution Guidelines for the Workplace
By Joe B. Hewitt, Mediator
Copyright 2008, Joe B. Hewitt.
Permission is given to copy and duplicate for use by a single entity, not for sale or distribution.
With the possible exception of conflicts that as a last resort go to administration for arbitrary settlement, all conflict resolution sessions should be confidential. Nothing that is said in the session should be repeated to others. (However the law requires that revelation of child neglect or abuse, and elder neglect or abuse must be reported to authorities immediately, which are not likely to come up in workplace conflict resolution.)
I. Conflict with a Colleague, One on One
When a colleague observes inappropriate conduct or bad behavior by a fellow employee, he/she should assume the responsibility of trying to de-fuse the situation.
For example: A colleague steps out of her office, grabs a fellow employee by the arm, screams at him, and shoves him.
The colleague who observes this should ask the screaming colleague for a private talk. If the out-of-line person is still controlled by a fit of anger, the aspiring peacemaker should become the Initiator of Conflict Resolution and ask for a meeting the following day. If that request is refused, the peacemaker Initiator has a choice of (1) letting the matter slide, and take the chance the behavior will be repeated, or (2) reporting the incident to her Supervisor.
1. Go to the Conference Table
Ideally the intemperate person who has become the Respondent in Conflict Resolution will cool off, sit down with the colleague, and discuss the problem.
In the meeting, the Initiator should establish a relationship with the Respondent. For example, “I’m not trying to exert any authority over you. We are colleagues and friends. I asked you to meet with me to follow the Company’s Conflict Resolution Guidelines. Following those guidelines, everything that is said here is confidential. I’m sure we both want what is best for our department. At the same time, I want to avoid any official report of this incident. I hope we can resolve the conflict amicably. I know you must have been under a great amount of strain, or you wouldn’t have reacted as you did. Please tell me what led up to the confrontation.”
The most important thing the Initiator can do is to listen. Be patient. Listen to all the circumstances that led up to the confrontation. Don’t be surprised if during the explanation the Respondent will realize he/she was out of line, admit it, and vow to keep his/her temper under control. If there is something not clear, ask questions. If there seem to be contradictory statements, ask more questions. Ask for clarification. Finally, restate in your own words what the person has told you and make sure you have a complete understanding of what he/she said.
After the Respondent has completely run down, tell what happened from the Initiator’s vantage point. If there is a disagreement on what took place, don’t argue. Emphasize the parts of the incident on which both agree. Especially emphasize the common concern both have for the smooth operation of your department that benefits all. That concern must be number one, and we must be able to adjust our own personal biases and proclivities so we can always act in the best interest of all members of the department.
Discuss options to solve the problem. Write down the options on a board or paper. One by one, scratch unworkable options. Try to get an agreement on a solution to the conflict.
The Respondent might be willing to contact the recipient of her ire. Ask him to explain his actions that led to the confrontation. Apologize for overreacting, then ask for the same kind of sit-down discussion as she has had with the Initiator-de-fuser-peacemaker.
If this leads to a settlement, the conflict need go no further. People who have settled their own problems take pride in being part of the solution and are more likely to stick with it.
When a settlement agreement is reached, write it down. Make a copy for the Respondent and the Initiator. The settlement agreement can be simple. For example:
“I appreciate my colleague calling to my attention my behavior, obviously perceived as inappropriate, involving Billy Joe Smith. I will have a conference with Billy Joe no later than October 31, 2008, and try to understand his behavior that led up to the confrontation, with a goal of preventing both the provocation and my overreaction. In the future I will act in a professional manner to the best of my ability.”
Signed ______________________. Date ___________.
If no settlement can be reached, go to the next step: Ask the Respondent to meet with you and a mediator.
Conflict with a Colleague, Meet with a Mediator
With consent of the Respondent, the Initiator should contact a colleague, preferably one with many years of experience, and ask him/her to serve as mediator.
The Mediator is in charge of the process, which is basically the same as one-on-one.
1. Go to the Conference Table
3. Generate Options
4. Find Common Interests
The Mediator should arrange for the time and place of the meeting between the two parties. Sit together around a table in a quiet setting. It is best for the parties to face one another across the table. The Mediator should explain the mediation process using the following check list:
1. Welcome, Introductions. (Suggest informality, using first names.)
2. Purpose of mediation. (Focus on the future) The Mediator is impartial, not a judge. No one is forced into settlement. The decision is yours. The Mediator is a facilitator to help guide the parties to settlement.
3. Procedure and process.
A. Each side is given time for uninterrupted presentation.
B. Each side is to state its position.
All participants should be prepared to make suggestions for possible solutions.
4. Caucus. (Optional. Private.) In the event either party wants to talk to the Mediator in private, they can go to another room for a private caucus. In the event the parties want to speak confidentially to one another out of the presence of the Mediator, they can caucus as well.
5. Privacy and note taking. (Everything said is Confidential. No information can be used later in an administration arbitration hearing or court. Mediator cannot be called as witness. Notes to be destroyed .)
6. Ground rules. Be courteous. Listen. Speak respectfully.
7. Discuss with the parties the approximate length of time for sessions. If anyone has to leave at a certain time, make arrangements to reconvene at a later time if necessary.
8. Get both parties to sign Waiver and consent forms acknowledging confidentiality of sessions, neutrality of Mediator, and that the Mediator can’t be called later as a witness.
A. Mediator gives each party uninterrupted time, beginning with the initiator.
B. After each party’s presentation, the Mediator should clarify issues and problems. Make sure he/she understands what each party is saying, and make sure each party understands what the other party is saying. If there are any questions, the Mediator should ask them. The Mediator should be crystal clear in his/her own mind what both parties are claiming. It is vital that the Mediator maintain neutrality.
C. Generate options. The Mediator should write options on the board or on paper. Write as many options as possible, discuss them, and eliminate the unworkable options one by one.
The Mediator should guide the parties toward settlement. Make suggestions. Consider reciprocity: “If he does A, would you be willing to do B?” Once there is an agreement on any point, write it down.
When a settlement agreement has been reached, the Mediator should make sure each party has complete understanding. Then write the agreement. Ask each party to read it, approve it, and sign it. Make copies for both parties and one for the Mediator.
If no settlement can be reached, the Mediator should declare an impasse and refer the matter to administration.
SAMPLE SETTLEMENT AGREEMENT
In the matter of an altercation between myself and Billy Joe Smith outside my office on August 18, 2008, I agree to visit Mr. Smith and try to ascertain what led up to his behavior that day and to apologize for my outburst. To the best of my ability I will keep my temper under control, act in a professional manner, and maintain a good relationship with my colleagues.
Signed, Joanna Johnson, Respondent
In the above matter, I agree to keep all the details of this conflict confidential, and will lend my support to Joanna in the future to prevent such conflicts.
Signed, Jane Doe, Initiator
Signed, Bert Brown, Mediator
If mediation does not result in a settlement, the next step is to go to the administration. The Administrator should talk to the Initiator to learn the about the conflict in question and make a decision whether to act as mediator in a second attempt at mediation in a confidential setting or have an administrative hearing and arbitrarily make a decision dictating the terms of settlement.
If the Administrator and Respondent agree to a confidential mediation session, the Administrator might want to invite Billy Joe Smith to be present during the mediation. (It would be up to the Administrator whether what Billy Joe Smith did to provoke the outburst should be considered a separate conflict, or mediate both conflicts together. If tempers are hot, it might be advisable to separate the two incidents.)
The Administrator-Mediator should follow the same guidelines as the colleague Mediator outlined above:
1. Go to the Conference Table
3. Generate Options
4. Find Common Interests
In the event the Administrator-Mediator does not achieve a settlement, the only recourse is for him/her to exercise authority and act as an arbitrator, handing down a binding decision.
II. Conflict between Employee and Client or Customer
In this situation the client might bring an accusation against the employee, so the employee becomes the Respondent with a responsibility to try to resolve the conflict one-on-one if possible. Having been apprised of a complaint the employee should contact the client asking for a conference.
1. Go to the Conference Table.
Use the same techniques outlined above in the section, I. Conflict with a Colleague, one-on-one.
The employee should invite the client to tell the whole story. Suggest confidentiality, however the client may not agree, wanting to leave his options open for complaint to the administration.
Encourage everyone concerned to tell all. The employee should make sure he/she understands the client’s position. Ask questions. Repeat in your own words. Clarify.
Ask for options to settle the conflict. Offer option ideas. Write them down. Discuss them. Narrow them down and try to reach a settlement agreement. Consider reciprocity.
Once you have reached an agreement, write it down, and ask everyone to sign it. Make copies for everyone.
SAMPLE SETTLEMENT AGREEMENT
In the matter of a dispute between Sylvester S. Smith, and Customer Service Representative Joanna Johnson, regarding double charges being debited to Mr. Smith’s bank account on August 18, 2008, all parties agree to the following:
Joanna Johnson, having seen Mr. Smith’s cancelled check showing he had paid $2,380.22 on August 1, 2008, will credit his account for that amount no later than September 1, 2008, and will not make another debit on his account until the following month’s service is due, and will make a report to the Vice President-Finance.
Sylvester S. Smith acknowledges that the above error probably arose because he had mailed his check to the Wilmington, Delaware, office rather than the Dallas office, and therefore, the credit did not show on his account in a timely manner.
Both parties agree that the matter is closed.
III. Conflict between Employee and Administration
Here danger lurks. Any time you have a dispute between a person and another one in authority, you have an uneven playing field. Obviously the employee may feel intimidated. The Administrator may be gun-shy, afraid of litigation. At best the situation is tense.
SAMPLE SCENARIO: John Johnson is an employee and who feels discriminated against because he is male in an office dominated by females. He has made a formal complaint to the Supervisor, and Section Chief, both women, accusing them of giving him the worst possible assignments meetings preparation. “They have turned me into a janitor and furniture mover,” he said. It has been going on for five years. He has complained several times. He still gets the worst assignments, and the younger women with less experience get the best assignments. Mr. Johnson says he’s fed up, and if he can’t get some justice from the Administration he will appeal to corporate headquarters and possibly file a lawsuit.
1. Using a Colleague Mediator
The ideal would be for the two to agree on a colleague-Mediator to settle the conflict and keep it in the family. It is doubtful that Mr. Johnson would agree to a fellow colleague as Mediator unless it is an older woman for whom he has a lot of respect, or perhaps another male colleague whom he could trust to be impartial. The Administration would probably not consent to a close friend of Johnson’s to be mediator. However, if a peer mediator could be agreed upon, it would be better than the alternative escalation.
In this case Mr. Johnson is the Initiator, and the Supervisor and Section Chief are the respondents.
The selected Mediator has to take charge of the mediation process, even though his superiors are parties. He may find it difficult. The situation is like a president of a large corporation playing on the company’s baseball team, taking instructions from the coach who is one of his employees. All concerned must accept their roles in this particular situation.
Since time schedules and history will play an important role in this mediation, the Mediator should request that all pertinent documents be brought to the mediation session. For example, Mr. Johnson claims he was given the worst special meetings detail for the past five years. Those records will be needed.
Confidentiality is especially important.
Another requirement in this kind of mediation is that the parties have full authority to settle. You don’t want to get near a settlement and have the Supervisor say, “I can’t agree to that until I talk to the President,” or Mr. Johnson to say, “I can’t agree to that until I talk to the union.” If both parties do not have full authority to settle, the Mediator should postpone the mediation until all parties with that authority can be present. Other than making sure that requirement is met, the Mediator should follow the same course of action outlined above in I. Conflict with a Colleague, One on One, Meet with a Mediator.
Allowing the Initiator to vent is especially important.
After everyone has had their say, the Mediator might ask to look at the assignment records for the past five years, and lay them out on the table. It might be obvious that Mr. Johnson was mistaken on one point and that the Supervisor did seem to dump on him in another. The best way to get the truth out on the table for all to see is for the Mediator to ask questions. He/she’s not taking sides, just trying to clarify the information.
After the Mediator starts listing options, it might be necessary to separate the parties, leaving the Respondents in one room and taking the Initiator to another room. In those caucuses, the Mediator can make suggestions more freely than he/she could in the presence of the other party.
The Mediator can also re-state the other party’s position to make sure it is understood without the other party thinking the Mediator to be partial. For example, in a private caucus with the Principal and Assistant Principal, the Mediator might say, “You can see that John is angry. If we can’t come to a settlement agreement in mediation, you know what will come next. Dealing with the Corporate Headquarters is an unknown. You don’t know what they’ll do. If it goes to court, it’s even more of an unknown except that it will cost a lot of money. The best way to be sure of the outcome, is to arrive at a settlement agreement both you and John can live with. Now according to your records, you did assign John to heavy work in six meetings last year. Would you consider it an option to make a change in that pattern? . . . etc. etc.” You wouldn’t want to say those things in Mr. Johnson’s presence, so a caucus is called for.
In a private caucus with Mr. Johnson, the Mediator might say, “I really think the Supervisor is seriously considering remedy to your problem. I hope you will work with her in coming up with something that both of you can agree to. The alternative is scary. If you go to Corporate Headquarters with this, you don’t know what will happen. If you file a lawsuit, it will cost you a fortune to prosecute the case, and you still don’t know how it will turn out. The best solution is to work something out here in mediation. Now you said earlier that if the Supervisor would give you a better assignment in office, you wouldn’t mind doing some extra duty in special meetings because you understand that your strength is needed there to do things these little women can’t handle . . .” etc. etc.
Going from caucus to caucus is called “shuttle mediation.” Sometimes it is the best way to go. If the Supervisor agrees to one point, urge Mr. Johnson to agree to another. Soon you have an agreement. Write it up. Get everyone to sign it, and go home friends.
SAMPLE SETTLEMENT AGREEMENT
In the matter involving a grievance by John Johnson, against the Supervisor and Section Chief, alleging unfair assignment of non-office tasks, the parties, having full authority to settle the dispute, agree to the following:
The Supervisor and Section Chief render to Mr. Johnson an apology for treating his physical strength as a liability rather than an asset by assigning him to especially onerous tasks that should have been shared more equally with other employees. The Administration agrees to remedy that situation effective no later than October 1, 2008, by using a roster wheel of employees and assigning him only his fair share of each of the non-office duties except in instances where he specifically agrees to do more than his share.
Mr. Johnson agrees to do his fair share of the non-office duties as assigned by the Supervisor or Section Chief using the roster wheel without complaint, and agrees to do fifty per-cent more of the heavy furniture moving for special meetings where his physical strength is needed.
Signed, Section Chief
Signed, Initiator, John Johnson
2. Using an Outside Mediator
If either party refuses to use a peer mediator, the Administration should contact the Corporate Headquarters to determine if the company has staff mediators, or if the Initiator is afraid they too would be biased against him, an outside professional should be hired.
3. Out of the Family, Out of Control
If all else fails and the Initiator files a lawsuit, it will be up to the company’s attorneys to fight the battle.
The usual sequence of events:
The Initiator hires a lawyer. The lawyer files an original petition with the court alleging the Initiator, now the Plaintiff’s charges. The Defendant attorney files an answer. The court sets a trial date months in advance. The court orders the case to mediation. The court-appointed mediator gets all the parties to the table.
Now the situation is much more complicated and around the table we have, the Plaintiff and his lawyer; The Company’s Lawyer, and the Supervisor and/or an Officer of the Corporation, representing the Defendant. The scene is played out much like the scenario above except the Plaintiff will probably be asking for a large amount of money in addition to redress. The lawyers are charging large fees. Both parties have to pay the Mediator. He tries to get everyone to cut their losses and settle because if they go on to trial, costs will be multiplied and the outcome will be in doubt.
Recommendations for Ongoing Conflict Resolution Program
1. Duplicate the sections on Conflict with a Colleague, One on One and distribute them to the entire staff with a cover letter stating that it is every employee’s duty to de-fuse conflict by initiating intervention.
2. Ask employees to volunteer as peer mediators. Duplicate the entire set of guidelines and give it to the volunteers. If they will study the guidelines and scenarios, they will be better equipped to do a mediation. It is important that they use the check list.
Get those volunteer mediators together in a self-study group. Assign some to write a scenario. Assign parts in role playing exercises. Let them take turns being the Initiator, Respondent, and Mediator. With two or three mock mediations behind them they will be ready to do peer mediations.
WAIVER AND CONSENT FORM
(To be signed before mediation begins.)
This waiver and consent form is executed in exchange for participation by the Mediator in the mediation of a dispute between
___________________________________ and ______________________________________
It pertains only to the matters arising during mediation of that dispute.
1. I understand that the Mediator is not a legal advisor. I agree to hold the Mediator harmless for any observations, suggestions or implications that he/she may make in the course of mediation.
2. I waive any right of action that I may have against the Mediator for any allegation of wrongful conduct on his/her part.
3. I agree to the necessity that mediation be confidential and; therefore, agree that I will not call the Mediator, to act as witnesses in any court or administrative hearing.
4. I agree to treat anything said by the opposing party as part of an offer to compromise and settle the dispute being mediated. I further agree that statements made during mediation shall be treated as offers to settle and shall not be admissible should this matter result in litigation or an administrative hearing.
5. I specifically agree, however, that a fully executed settlement agreement can be admitted to any court proceeding without my objection as evidence of such settlement.
Signature of Party Date
These guidelines are based on a workshop Mediator Joe B. Hewitt has done for business and professional organizations.
For information on having such a workshop in your school, contact us.
Mr. Sandy Zucker
7920 Belt Line Rd., Ste. 610
Dallas, Texas 75254
Copyright 2018 Hewitt Mediations.
All rights reserved.
Mr. Sandy Zucker