Imagine a scenario where you have staff of various qualifications and backgrounds who all work together in perfect harmony like an orchestra. All working together in a team, no conflicts just focused on achieving the company’s vision and mission. This is every CEO’s dream come true.
The reality is that no such company exists and there are various tools and techniques that have to be thought off. Various consultants and human resource managers working together through trial and error methods as in every company different methods may work or fail. The new trend is that due to various issues that come up in everyday challenges that the staff face many companies have engaged in resolving workplace conflicts through Mediation and Arbitration. Commonly these two methods which are the most popular have been inserted into employment contracts as an alternate dispute resolving mechanism at the work place between employers –employee’s conflicts. Training companies and various professional institutes have been making serious money and taking advantage and all of them propagating mediation and arbitration as the ultimate method of resolving conflicts instead of resorting to litigation or directly engaging unions.
So let us examine superficially for the purposes of this article as to what exactly is mediation and arbitration:
This is a process that attempts to settle a legal dispute through active participation of a third party (mediator) who works towards getting both parties to engage in talking about their grievances and reaching some common ground in order to come up with an agreement. The mediator is a neutral party.
Arbitration is a legal technique for the resolution of disputes outside the courts, wherein the parties to a dispute refer it to one or more persons (the “arbitrators”, or “arbitral tribunal”), by whose decision (the “award”) they agree to be bound.
Many companies in Kenya have now resorted to train a couple of senior staff with a belief that this training will solve all the problems of conflict at the work place. A few months down the line some find a modicum of success and for the rest it is just business as usual. The person who attended can now to update their curriculum vitae and that’s about where it stops.
Resolving workplace conflicts cannot be done by simply training a couple of employees and it will take a whole change in company working culture to bring an overall change on the employee-employer attitude. Conflicts arise at a workplace based on many reason which are deeply rooted. For example religion, culture, race, education, physical age and so on.
The basic principles of arbitration and mediation is the neutrality, fairness, confidentiality of the process, quick resolutions, without prejudice to any of the issues mentioned above, positive solutions for the future, dialogue compared to antagonism and overall brings out a win –win solution where both parties to the conflict can move forward.
At any workplace there is always politics and there is always an alignment either to the management or towards the staff. Therefore, there are always issues or perception within the ranks as to where each person stands. In situations like this the process of arbitration and mediation becomes challenging and it would be recommended that the companies use a mediator or arbitrator who is not part of the staff but an individual professional who is fully dedicated to the practice and can be available on regular intervals to resolve conflicts and cool down areas of contention.
Challenges of In-House Training of Staff (Adult Learning):
The definition of an adult for the purposes of this article we will assume is any person who is at a legal working age and is responsible, autonomous and self-directed in their lives.
Learning is defined as a process in which individuals acquire knowledge, skills and attitude through experience, reflection, study or instruction. It is a deliberate change in behavior resulting from instruction or stimulation from external sources, from one’s own practical experiences and from insight arising from reflection. Just like everyone cannot be an engineer, lawyer or a doctor it would be difficult to train the entire staff and make them understand the intricacies of mediation or arbitration. Its professionals who are in practice that are best suited and are fully motivated to and will be able achieve the goals for conflict resolution within the workplace environment.
For older workers and those not highly educated retention of knowledge also becomes a challenge therefore what amount of information is disseminated becomes essential and information overload will simply frustrate any effort to resolve conflict where the process may be too complicated for them to grasp.
Learning, understanding and transferring this information taught in a significant way to create a change in the workplace environment for laymen to implement a technical process is not an easy task. The challenge lies in teaching people from diverse backgrounds and levels of educational exposure to undergo a process of putting aside the earlier acquired skills to adopt new skills and making them move from what they know to the unknown for a new positive change is a huge challenge for any employer.
Time constraints and work pressure makes learning very challenging at the workplace as there is a constant distraction with deadlines to meet in production, execution of duties and so that takes away the attention of the learner.
Once those who are able to focus and learn the skills in mediation and arbitration, the issue that affects them now is knowing the process has legal implications and like in every profession there are implications of negligence when wrong decisions are made many employees and employers are not willing to take on those risks.
There are examples in the USA where the workers were forced to sign arbitration agreements to resolve all their employment issues including conduct of sexual advances made by senior staff on their colleagues. In Kenya criminal offences cannot be negotiated between the parties.
The above few things mentioned is not an exhaustive list and there are myriads of challenges that will be experienced and the whole spectrum of the challenges cannot be covered in one article.
There are different kinds of mediations and arbitration that parties can engage in just to mention a few in brief:
- Court Mandated Mediation: At times the courts do get involved when the issues are about getting a cost effective speedy end to a matter. Than the matter is referred to mediation.
- Evaluative Mediation: Where mediators are likely to make recommendations or suggestions or express opinions. They help the parties assess the situation for the party’s benefits.
- Facilitative Mediation: this is the direct opposite of evaluative mediation and it’s the most common form. The mediator facilitates the parties to arrive to an agreement.
- Med-Arb: This is a hybrid version of the two methods of dispute resolution. The parties agree to the terms of the process and to be bound by the eventual result.
- Transformative Mediation: the disputing parties are made to be cognizance of each parties interests and needs and basically it the parties acquiring the skills to make the constructive change.
Every company should endeavor to train and elevate the level of education for their staff and it’s a good investment in the employee. It is important for every Human Resource Manager to understand what kind of training is imparted and the difference it will make towards a better environment in the company? It must be a win –win and only than the results will show. There is a simple business line that most clever CEO’s use, Shareholders take care of the employees, employees take care of the customers and the customers take care of the shareholders.
Mediation and Arbitration are a very specialized conflict resolving methods and requires great skill, patience and prudence in dealing with issues. For a company to be able to deal with various issues that affect work place conflict. It’s important to know when problems can be solved by managerial mediation or arbitration and how to exactly prepare for a proper procedure to resolve conflicts.
Article by: Shafiq Taibjee
Honorary Fellow –International Islamic Centre for Reconciliation and Arbitration
Published in “The Professional” Magazine (APSEA-Journal of the Association of Professional Societies 1st Edition 24th October 2019)