News - Finding Middle Ground With Mediation
15/07/09
According to the HSE, work-related stress is a major cause of ill health in employees, poor productivity and human error. The statistics show that stress is widespread in our work culture and it is often cited as a cause of sickness absence but, more worryingly, it is a contributor to human error and accidents at work. For example, this can be due to mistakes, a slip of the hand or a lapse of attention or memory.
Sometimes working conditions or methods are at the root of a stressful environment but, in my experience, more often than not it is human issues which are at the root of a lot of tension between employees and/or their managers – and these issues are rarely adequately addressed by employers.
Bullying and harassment are obvious contributors, but more subtle behaviours can also contribute to stress – personality clashes, micro-management and even an absence of adequate management can all exacerbate situations.
As an employment lawyer I always have the legal workplace procedures in my tool bag when advising employers. This will normally involve disciplinary or grievance procedures at some level but unfortunately these methods are often more destructive than constructive where human relationships are concerned.
Instead of encouraging those involved to look at why there is a problem, raising a grievance will involve framing what amounts to an accusation. The person being accused is likely to take a defensive position or even launch a counter-attack. For example, an employee who claims to be suffering from stress may say that this is due to the bullying behaviour of their manager. If this individual is encouraged to put their complaint in writing, the end result will be a grievance detailing various actions by the manager that illustrate how badly treated the employee was. The possible outcomes from that are:-
- The grievances are upheld and the manager is held to account. This will have all sorts of implications for the manager’s ability to manage in future. If he/she is disciplined or there is a re-allocation of line management as a result, the manager may feel unsupported by the company and may resign, possibly claiming constructive dismissal.
- The grievance may be rejected. If this occurs the employee may feel that he/she is not being heard and being exposed to a stressful work situation. The employee may then consider resigning and presenting a constructive dismissal claim or even a claim for personal injury if they suffer psychiatric or other illness as a result. Even if the employee does not claim, he/she may seek legal advice and negotiate a compromise agreement, which will also have a cost implication.
- The grievance may be partially upheld and some middle ground found that satisfies neither the manager nor the employee. I would term this a temporary fix as in many instances in my own experience these cases resurface at a later date.
- The manager may launch a counter-attack, claiming that his/her behaviour was perfectly reasonable and that it was in fact the employee’s inadequate performance that led to the stressful situation. The aggrieved employee may end up facing disciplinary proceedings as a result and legal action is likely to be considered in these circumstances as well.
In my view, the problem at the heart of the legal approach is that there has to be a winner and a loser. Mediation offers the possibility of a different path. The main underlying principal is to find a win-win solution where the parties are not finding middle ground, but common ground.
If employees and/or managers discuss the cause of the conflict and find a workable solution for themselves, this is more likely to be a sustainable option. The mediation process is confidential and without prejudice which means that nothing said or done in the mediation can be relied on in a legal action after the event.
I have not stopped being an employment lawyer, I have merely expanded my repertoire of skills and that means that difficult problems can be addressed with creative, appropriate solutions which are aimed making the workplace ‘work’.
Sometimes the law is the best answer to resolve and decide a workplace issue, but good quality hands-on training and mediation are the most effective ways to get people working together effectively and therefore keeping conflict and clashes to a minimum.