Thank to Charles Middleton-Smith for pointing out a very interesting article from by his colleague, Antoine Adeline of Hammonds Hausmann in Paris.

Nothing to lose and everything to gain

The article is in French and Google Translate does a fair job of translating the text for those of you who don’t speak French…

Cour de Cassation

In brief the article is prompted by a recent judgment (8 April 2009) by the Court of Cassation which strengthens and clarifies a previous decision by the Joint Chamber of the Court of Cassation on 14 February 2003.

The meaning of which is that, in France, if the contract terms include a mediation clause no one can afford to fluff through the “invitation to mediate process”. The recent judgment makes clear that if you have a contract term to mediate, you must tick the box to confirm that mediation has been attempted and when you do,  you must make sure that you have indeed tried to mediate. Without evidence eg. that a mediator was actually appointed, ticking the box will not “tick the box”.

As Antione Adeline says, when at least 2/3 of mediated cases settle then you have “nothing to lose and everything to gain.”

In the wake of the new arrangements for grievance and disciplinary matters there is a wealth of advice and new books on what employers should be doing to meet the standards expected of them. There is also a guide to transitional arrangements for disputes which straddle 6 April 2009, the date when the new regime became effective.
The Gibbons Review which was the driver for the new arrangements speaks frequently of mediation as a preferred route to early settlement. The ACAS Code of Practice 1 on disciplinary and grievance proceedures also promotes mediation. However, the new code is not as clear about mediation as a tool for early dispute resolution as the original review, which is a great shame.

Here are 10 tips to help you reduce the number of employment and organisational disputes in your business.

1. Resist the temptation to train a team of in-house mediators
2. Make the resolution of disputes a commercial issue and not just an HR issue
3. Put dispute resolution on the board room table, in front of the CEO, CFO, CIO and Head of Legal Services
4. When employees experience good dispute resolution they express that in their relationships with customers and suppliers. Good relationships have always mattered but they are even more critical in a recession
5. Good dispute resolution skills are not separate from good leadership skills – train your leaders.
6. Differentiate between conflicts and disputes: conflict can be very constructive, disputes are not.
7. Using external expertise is not a weakness. Most employees consider external help a demonstration of commitment.
8. Interview potential mediators. What else could they bring to meet the needs of the organisation? What experience do they have? Will they understand the context of the organisation? Could they engage senior people in developing solutions to the underlying problems?
9. Be prepared to move people into roles where they are using their strengths every day. If they are successful and appreciated then it is unlikely they will have time or energy for anything else.
10. If you can’t move people to where they are using their strengths every day then be prepared to move people on to where they can use them.

Early dispute resolution adds value to your internal and external reputation, contributes to attracting talented individuals, helps keep employees focused on the important issues, builds confidence and trust, encourages innovation and problem solving. It builds shared responsibility.

If you would like to know more about the benefits to your bottom line of this approach, please contact me using the form below.

The new arrangements for disciplinary and grievance procedures have raised alarm bells for me not least as a result of the resurgence in the promotion of training teams of in-house mediators. Please don’t do it!
Why on earth not? I hear you cry. Here’s why…

1. You will need a variety of people to make up a team that might meet the needs of any and all disputes arising and that is a real challenge to build. It is a bigger challenge to maintain. When people leave the team, either because they leave the company or through promotion, it is unlikely they will be replaced immediately with another trained in-house mediator. Re-training has all kinds of hurdles not least getting enough people to make it worthwhile and allocating the funding. Soon, the resource becomes fragmented and the employees and managers lose confidence in the ability of the in-house team to deal promptly with issues arising. = disappointment
2. There are specific skills which require practice and attributes which require careful identification. A good deal of what is required to be an effective mediator can be trained but certainly not all. The classic choice for an in-house mediator is someone who already displays a “harmony seeking” style or disposition. They may be expected to deal with matters so that they do not become fully fledged disputes and that makes for pressure to stifle and curtail discussion about underlying causes. What you really need is someone who is very skilled in orchestrating frank and open dialogue and is confident enough to deal with the conflict that might engender. Someone who has the skills to make sure that can happen in a positive environment and who can guide the parties through it and out the other side. Without these skills and attributes, mediation can be seen as yet another “sticking plaster process”. = distrust of the process
3. It is rare for in-house mediators to have enough and regular practice or experienced support to maintain a level of skill to make them effective. If they fail, then that can reflect upon their overall role in the organisation. = resentment
4. It is rare for organisations to make the role of mediator the primary role for the individual. It is may be seen as a reward for past performance, an alternative to current (unsuccessful) performance or an opportunity for personal development. Therefore, there is an in-built conflict as mediation will always be secondary to their main job. That is neither helpful for them or for the people for whom they are acting as mediator. The possible measures for successful performance are incredibly difficult to establish. Reconciling those with the performance measures for the “day job” is even more complex. = risk
5. In-house mediators can be viewed as partial, with a conflict of interests and a vested interest in the outcome. This breaks the three core principals of why mediation works. The issue of confidentiality is also in question – at least in the minds of the parties. They know the culture of the orgnaisation and if they don’t believe in the autonomy of the in-house mediator then they will neither trust the process nor trust the mediator. All these are fundamental to the success of mediation. = long term distrust of a valuable business tool.

So what is the alternative?

• push the responsibility for dispute resolution to the top of the organisation. It works best when it is on the board room table;
• invest in training for senior managers on recognising the early signs of discontent and reward them for “grasping the nettle”;
• develop performance measures around conversation, consultation and change. For example, how many opportunities for “surgeries” has a manager created? How many meetings have been held where the agenda was designed by the workforce and not the manager?



“There is a real danger that people [employers] keep their heads down. There is a danger we can lock ourselves away in darkened rooms – when employees need us more than ever walking the floors.” Liane Hornsey, people organisations director at Google

• How many changes have been made to procedures and processes to remedy deficiencies and embed success?
• For every KPI on productivity, performance and output, can you agree a matching KPI for the manager or team leader on how many issues they have resolved which were presented by their team as being barriers to success? How about reporting on the pairs of KPI’s? This demonstrates shared responsibility.

On the occasion that a problem arises which is too sensitive or too complex to deal with internally then seek out an independent mediator who can bring fresh eyes, new perspective, impartiality and experience to the issues and who will also gain the respect and trust of those involved. If the matter is serious and complex enough to be still an issue then you will need experience and that will be a combination of

• mediation experience
• commercial experience
• sector experience

Why do it this way?

Because it is one of the most cost effective ways of resolving disputes and looking after your internal reputation at the same time. At the moment, internal reputation should be high up on the agenda of every company and organisation especially if redundancy is in the air.

Personnel Today – Rise in workplace conflict set to cost businesses billions

A recent report Fight, flight or face it published jointly by OPP and the Chartered Institute of Personnel Development surveyed thousands of employees in nine countries across three continents, in businesses of all sizes and in all sectors. A second survey revealed the opinions of 660 HR professionals in the UK, allowing for a balanced employee/employer view on conflict.

The research  found:

54% of employees want managers to address underlying tensions before they escalate into conflict.
58% of employees who have had relevant training now look for win-win outcomes from a workplace conflict.
In countries where such training is more prevalent, positive outcomes from conflict are far more common.
27% of employees have seen disagreements involving personal attacks or insults.
16% have actually seen conflicts lead to people being fired.

Recent article in Personnel Today about the anticipated rise in workplace disputes as a result of the downturn in the global economy. Video comment by me on why it is good to engage a mediator early in the process.