Career Advice Legal Case studies for employers

Don’t discount emotions when mediating

The situation

I recently handled a case relating to a work dispute, which happened in a family-run business. The case involved a long employment relationship and the contrasting cultures of different generations. The founder of the company passed his business on to his children after retirement. The dispute was between a former employee, who was taken on by the father and who worked in the company for over 10 years, and the new directors.

Conflict rarely occurs all of a sudden but accumulates over time. The employee in this case felt that the company had “changed” a lot after the new generation took over.

He said that the father had focused on their relationship and had a flexible approach to work, so he was very loyal to the company and this “boss” during the old days. He recalled that on, one occasion, when he was in hospital, the father visited him in hospital and brought fruit, which impressed him very much. However, the employee felt the new directors only looked at administration and efficiency, and were too critical of him.

From the new directors’ point of view, this employee failed to meet the new standards they had set and was unwilling to follow new rules and practices. With such differences between them, the two parties were not able to maintain good communication on various issues.

 The unsatisfactory relationship continued until one day the employee had an accident at work, which pushed the fraying relationship to its limit. The employee sought compensation, which was modest, but after months of negotiations, no settlement was reached. Faced with this breakdown, both parties then decided to try mediation as a last resort before litigation.

 

Mediation

During the individual mediation session with his employee, he did not speak much about the accident and the compensation, but rather complained about how the company was being badly run by the new directors.

This prompted me to understand and identify his underlying grievance, i.e. the feeling he was not being respected. We then allowed time and room for him to vent his anger and express the impact the accident had on him and his family. The employee viewed this process as a respectful one as he felt he was being listened to by the mediator. At the end of the individual session, he was better able to focus on his existing and future relationship with the new management, rather than dwelling on past unpleasant events. The employee was empowered by the mediation process to move on.

At the beginning of the individual session with the employer, the new management spent a lot of time talking about the company’s rules and practices, and details of the accident. It was very clear that they were looking at the dispute from an administrative angle, rather than a personal one.

While they were correct in seeing the mediation as an optional process, the mediators also got them to look at the dispute from other points of view: e.g. the company’s development, the old and new cultures and style of administration, relationships with old employees and so on. These preparatory works helped find common ground for the joint session.

When it came to the joint sessions, at first neither party was very communicative but at least they were not too hostile towards one another. They followed the facilitative process and eventually reached a point where the employee’s attitude towards the new management softened.

 Seeing that there might be a breakthrough, I picked up on the employee’s good intentions and treated the dispute as a relationship issue between the two parties. Individual sessions were called, in between the joint sessions, and more work was done on each side to bring out the long relationship, trust and loyalty between the employee and the company.

Both parties were invited to consider the classic question of how the mediation might help them get back to normal life. The employee then calmed down, and was finally able to return to the joint session. With the joint effort from both sides under facilitation, the case was settled to general satisfaction.

 

Conclusion

Nearly all disputes originate from a relationship, whether it is commercial, between employer and employee, landlord and tenant, or husband and wife.

A person’s emotions, expectations, yearnings and relationships are complicated, but play essential roles in the origins and also the resolution of conflicts. It is therefore my policy to first look at the emotional side of people’s complaints and their relationships with the other party before proceeding to mediation. It is often there where the solution can be found.

 


This article appeared in the Classified Post print edition as Don't discount emotions when mediating.