6 min read
14 Dec

The unique promise of mediation lies in its capacity to transform the quality of conflict interaction itself, so that conflicts can actually strengthen both the parties themselves and the society they are part of.

Robert Baruch and Joseph Folger  

The standard South African workplace, of all sizes, approaches workplace discipline and staff motivation (if they have a systemized approach at all) as a grudge expense, an exercise in damage control and something to generally be endured and tolerated. Workplace dispute resolution is largely discipline focused, top down control structures, with the standard retroactive mechanisms and remedies of various levels of warnings, counselling sessions and disciplinary hearings, all designed to follow a tick-a-box if this-then that structure. Workplace discipline, in these systems, is more a case of managed control than pro-active assessment and identification of conflicts at their cause and joint problem solving systems designed to derive the best out of everyone to everyone’s benefit. Even the timeous identification of and engagement with conflict is ignored by management until it is too late to derive any of the benefits of early detection.   

We will, in a future article, look at what such a modern South African conflict and dispute resolution workplace system should look like, and how they should be designed around the specific needs and operational goals of the employer. For now, we want to focus on one innovation that we have been testing in South African workplaces during the last eighteen months, and where we have achieved measurable successes beyond our initial positive expectations, specifically the concept of workplace mediation. Extremely positive, cost effective, measurable and relatively quick results across a spectrum of small, medium and large businesses have been recorded in areas as divergent as workplace discipline, productivity, workplace and diversity harmony, attendance, employee retention, and a marked reduction in time and cost spent on internal and external disputes such as formal hearings and litigation, external experts and several other criteria. All of these inarguable workplace benefits can be traced to the correct introduction of a workplace mediation structure, again tailor-made for the specific workplace, either as a stand-alone forum within the larger and already existent workplace disciplinary system, or as a part of a new and larger workplace conflict system designed for the employer. 

What are the benefits of this simple innovation, and what does it look like in practice? 

A mediation option can be inserted into an existing disciplinary code and disciplinary process in a matter of minutes. Without much alteration to the existing disciplinary framework this crucial tool can be made available to the parties as a powerful adjunct or alternative to the existing system. Time is simply not a factor in choosing to adopt this as an extra mechanism. Existing staff and infrastructure can be used, and depending on the size of the workforce one or more existing senior HR staff or senior management members can be trained in advanced workplace mediation in a matter of weeks or months, all at minimal costs and disruption. 

Properly understood and implemented, this simple additional level of workplace dispute resolution often meaningfully reduces more confrontational methods such as disciplinary hearings, dismissals, strikes and post-dismissal conflict. The presence of the mediation option brings an entirely new set of options to workplace conflict and discipline, without in any manner detracting from the standard workplace discipline requirements. Research and case studies, as well as our own experience, show an increase in workplace discipline along several measurements. 

We have found the occasional reluctance to allow workplace mediation to become a part of conflict and discipline management systems. Expressed concerns range from perceptions that mediation is a “soft option” to concerns that it would replace a tougher management stance against certain levels of transgression. At the outset, it must be noted that the old-fashioned top-down control-and-conquer workplace discipline philosophies have many strong arguments against them, including recent empirical evidence showing harmful results across a wide spectrum of assessments that should all be of value to the prudent employer, including an increase in litigation and consultancy costs, time spent involved in pursuing or defending workplace conflicts that have escalated externally to forums like the CCMA and the Labour Court, employee and skills retention, workplace harmony, diversity programs and many others. But even at its most basic implementation level workplace mediation does not detract from discipline at all. It is an intelligent option that, in the hands of the skilled and experienced management member(s) enhances disciplinary outcomes. On a more objective and immediate level certain alleged offences can of course simply be excluded from the mediation process, examples such as criminal offenses, offenses involving dishonesty or violence and any self-determined and industry relevant offenses. 

Mediation processes can still result in some of the more traditional sanctions such as warnings and other remedies being retained by management, although this must be carefully managed so as to not defeat the underlying values and aims of mediation. Experience shows how alleged offenders approach mediation in a much less confrontational and defensive manner. Even potential dismissal situations can be dealt with via mediation, and alternative solutions (including termination of service) can be arrived at consensually in this manner, without the risks inherent in the confrontational disciplinary hearing model and the various external steps that invariably follow after that. Mediation by its very nature is a more creative process, and complex interpersonal, cultural, gender and inequality differences can be far better addressed and resolved using this process.   

In such mediation settings the very tone of the conflict changes. With other options now on the table, the employee often does not feel the need to be limited to the defensive fight or flight options so characteristic of the adversarial disciplinary hearing process, and experience shows that concessions and admissions are easier made when the outcomes can be engineered through mediation. A disciplinary code can, and in our view should, make such mediation process an entirely off the record event, which further encourages honest and robust participation by all involved. As a rather fruitful aside, management can often learn quite a lot of valuable information during such off the record discussions. 

In our experience unions have no objections to a properly constructed and implemented mediation tier added to the normal disciplinary process, and they often participate in the creative problem solving that follows. Research in Britain shows, for example, that employees are significantly more in favour of workplace mediations than employers, so once the employer sees the value of adding such an option, little or no objection should be anticipated from the employees/union perspective.   

The skilful workplace mediator presents, at this stage, the problem or allegation in less accusatory terms, which opens the scope of the discussion, invites joint problem solving approaches while not prejudicing the employer at all should the mediation process not be successful and need to be escalated to the next level. The problem at hand, say workplace theft or lack of productivity, can be addressed as more of “our” problem, and less of an “us against them” polarization. A two-way platform can be created where conflicts can be identified, addressed and resolved in a respectful and efficient manner, between parties that are fully aware of the operational challenges facing that specific employer and its employees. The need for external consultants will reduce rapidly to where most of such workplace conflicts can be handled by internal management staff. There is of course value in retaining external expert consultants for such work, and management can regard this as an operational consideration.  

One of the most valuable results that we have observed flowing from such a mediation tier is the radical improvement in workplace relationships, not just between the parties involved in the conflict but at a wider level. Anyone experienced in the more conventional disciplinary hearing process will be aware of the permanent harm so often done by such process, regardless of the result of such a hearing. When the dust settles on those battlegrounds, and after everyone has accused each other of various things, the result is often academic, with the employer / employee relationship irreparably harmed. Those hearings are often the beginning of the end for the involved employee, and, because of that same reason, valued employees are often kept out of such processes, which of course creates several other problems for management. As such, an effective mediation tier often serves as a buffer and safety net in the balancing act of dealing with the problem while also at the same time protecting valuable working relationships. 

Mediation processes can be managed as confidential, and this serves as a further incentive to parties to resolve their conflicts at that level before matters get to the more confrontational and potentially public nature of a disciplinary hearing. Mediation can be used as a solution across the spectrum of disciplinary categories, whether that is performance related, incapacity or misconduct related, and we have even used mediation as part of the ongoing s189 process during retrenchment consultations. 

Mediation is of course, by its very nature, a voluntary process, and participation therein feels less coerced to at least the employees involved, and a decision to now participate in such mediation process can be respected and simply managed by the disciplinary code or a similar conflict system document. Mediation, with its more informal and participatory tools, can often reach the places where the more legalistic disciplinary hearing processes cannot. In principle, parties can agree to provisionally work with otherwise problematical evidence such as hearsay, allegations, presumptions and inaccessible information to the benefit of everyone. Mediation can also serve to clear the decks of disciplinary hearing processes for otherwise more contentious and important disputes. Workplace conflicts often start with small conflicts, misunderstandings and poor communications simply not identified or dealt with. Victims real or perceived are often quite satisfied with resolutions that allow them to be heard and respectfully recognized. 

Mediation is also not, when done properly, a compromise solution. Modern conflict resolution research and case studies all promote creative solutions over “meet you in the middle” compromises, and the mediation process in the hands of a skilled operator is thing of beauty. Mediation often brings solutions that simply are not available to the more conventional disciplinary processes. Valid objections to adding a mediation option to the workplace conflict system are, as we have seen, hard to come by. It can be made subservient to any operational or disciplinary considerations, it requires no resource or infrastructural outlay, and the important training can be done quickly and at minimal costs. We experience optimal results with a suitably trained mediation team of two or three people even in workplaces of 4000 to 5000 employees. Such a mediation option can be assimilated into existing disciplinary codes and procedures, and other than the mediation team or person no one else will require any training. 

Research shows that an ad hoc application of mediation in the workplace is unlikely to transform the culture of conflict management in an organization. A structured and integrative approach is necessary to obtain all of the benefits of workplace mediation. As we have seen, this is certainly not hard to accomplish. The few recognized structural challenges to workplace mediation, such as confidentiality, possible power imbalances and mediator impartiality are all relatively easy and cost effective to address and resolve. 

Workplace mediation is simply a modern and extremely efficient solution to the above workplace challenges. During workplace presentations we make these advantages even more apparent using the specific employer’s goals and desired outcomes. Case studies in Europe and the US show remarkably good results from such workplace mediation systems, and we would suggest that those concerns are even more valid and applicable in the South African context. Workplace mediation is therefore a modern, transformative solution to the South African workplace challenges.   

  • Further references and study material are available on request.

   (Andre Vlok can be contacted on andre@conflictresolutioncentre.co.za for any further information)

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