Cutting workplace conflict and barriers to resolution

Conflict is everywhere.  Conflict can be good - when the aim is to debate a way forward, and the means is constructive dialogue. Most conflict is harmful leading to arguments about ‘right’ and ‘wrong’ and allocation of blame. It is time consuming, stressful, costly and often damaging to health. It does not make for a productive workplace.

In my 20 years of employment litigation over 95% of employees were badly affected by the litigation process.   Most distressing is the impact on mental health, family life, loss of job and financial problems. I gave up litigation to set up YESS (Your Employment Settlement Service) which provides legal advice about how to resolve disputes without litigation. Constructive dialogue has many advantages: a better outcome for the parties (than litigation) less stress for all parties and sometimes continuing employment for the employee. 

 Our adversarial system is a barrier to resolving conflict. Our focus should be on solutions not blame. Once allegations are made and rebutted, conflict escalates, and it is harder to resolve the problem. Pride comes into play, sickness absence often occurs and communication dies. If lawyers are involved, they often focus on legal arguments instead of what the employee wants and how to achieve it, for example through mediation.

The legal system – and lawyers – think in terms of winning or losing. The dialogue is often full of threats.  Both parties ‘know’, and/or intimate to the other party, that they will succeed in court proceedings.  Resolving the dispute is then much harder.

Conflict in the workplace costs employers £28bn per year. This includes the grievance process, sickness absence, dismissals, resignations, recruitment costs, litigation costs. By contrast early resolution costs between £78 and £1,500 (for a mediation).  It is a ‘win win’.

Removing the adversarial parts of employment law is a first step.  Often the start of employment litigation is effectively the grievance process. Failure to bring a grievance, if unreasonable, may lead to a reduction of compensation if a tribunal claim is successful. Grievances often do more harm than good as they are rarely upheld. Few employers will acknowledge wrongdoing as to do so may land them in an employment tribunal. Consideration should be given to an alternative solution – to the grievance – based on an early resolution process.

‘Nip it in the bud’ is key. In too many workplaces the conflict is left to fester instead of resolving it. The longer the conflict has lasted the more entrenched it is, making resolution harder. 

Then there are the adversarial lawyers. The initial legal discussion is often about the merits of a claim and time limits. A better, solution-based approach is to ask what the client wants followed by discussion about how to achieve it - with resolution at the heart of the discussion.

Mediation is a mystery to many.  Few understand its benefits such being able to negotiate more in mediation than a court could order. There is a need for widespread education for everyone including an obligation on all lawyers to discuss mediation with their clients. 

And finally, we need to change the culture - from fighting to resolving. Litigation should be the last not first resort. That will take time, but it is clearly in everyone’s interests.