Conflict in the workplace is natural and can be constructive. Through communication of different points of view and perspectives, co-workers may gain a greater degree of insight into the issues at hand and increase the options that may be available to resolve difficult issues. Healthy conflict leads to candid discussions in which co-workers may challenge themselves to think creatively and open up to learn about valuing and respecting the opinions of others.
On the other hand, it is almost inevitable, and a byproduct of the human condition, that conflict may trigger emotional reactions. Anger, resentment, and hostility may be produced even where discussions are conducted in good faith. Unhealthy conflict may be occasioned by the commission of inappropriate workplace behavior, such as undesired advances, unconsented touching, or the use of discriminatory practices in making workplace decisions. Failure to address unhealthy conflict allows the situation to fester, injuring morale and, more importantly, creating an environment in which conflict may dramatically escalate into major conflagration.
The collective bargaining agreement
Under the provisions of a collective bargaining agreement, an employee may pursue a complaint about on-the-job treatment though a stepped grievance process. The process typically starts with a representative, such as a shop steward, informally discussing the matter with the employee’s supervisor; and if no acceptable resolution is reached, the process may continue to the point where the dispute is finally resolved by a neutral arbitrator, subject only to limited judicial review. Third-party mediation or arbitration may be required by the terms of an individualized employment agreement with the employee in question. Resort to a mediation may be a prerequisite to the filing of litigation and, if the mediation succeeds, the cost, expense, and trauma of the judicial process is avoided.
Resolution through ADR
In the absence of a collective or individualized agreement, how a workplace conflict gets resolved may depend on the employer’s policies. Some employers may encourage or require employees to seek informal resolutions through their supervisors or through human resources staff members. But if an informal dispute resolution process is not available or resorting to it fails to resolve the controversy, the conflict may deepen and will likely result in the filing of a lawsuit which, in turn, engenders more conflict.
However, this is not inevitable. Even without the necessity of a pre-dispute agreement, the employer and the employee should consider utilizing alternative dispute resolution (ADR) mechanisms. Since there is a tendency in the courts now to mandate early mediation efforts, a pre-suit decision by the parties to invoke mediation before a court filing may avoid delay and cost. Mediation and arbitration provide effective, fair, and relatively low-cost and non-invasive means of resolving workplace conflicts.
The use of mediation as a voluntary means of resolving employment disputes is rapidly gaining acceptance. If agreed to early on, it may save the significant costs of litigation yet allow the parties to perceive that each had a full opportunity to explain their side of the situation to a jointly selected, experienced neutral. When parties have the chance to be heard and vent their emotions, the air is cleared, and the matter is placed in a posture conducive to resolution. This aspect of mediation should not be underestimated. Employment disputes often have their origins in emotion-laden conflict. Venting the emotion allows the parties to look at the dispute more objectively and, putting aside the emotion, to make well-reasoned and objective decisions as to how to best deal with the situation.
The presence of a mediator is essential to this process since, without a neutral being available to listen, the employee will only be talking to the employer, who is perceived to be the source of the problem, not the solution to it. A skilled mediator helps the parties focus on what is important to shift away from distractions and achieve a resolution.
The advantages of mediation
- Resolving earlier on in the dispute
Early mediation has the advantage of allowing the conflicting parties to both articulate and evaluate their respective contentions, and the avenues for resolution. Early mediation offers the opportunity to resolve the dispute by preempting the acrimony that tends to accumulate as the conflict intensifies the longer the dispute persists.
- More possible outcomes than in litigation
Mediation also offers the parties the prospect of crafting a remedy that may not be available through litigation, such as job modification, letters of apology, placement in an alternate position within the employer, restricting of the employee’s reporting relationships, retention and severance packages, and assistance in developing and pursuing other employment opportunities.
Mediation has the advantage of being confidential. Employees certainly do not desire to have their co-workers or future employees find out about negative job evaluations or conduct that reflects poorly on workplace performance. Employers have an interest in keeping a dispute with one employee away from other employees and thereby protect office morale and efficiency. Both the employee and employer may desire to avoid sharing the details of any resolution with other employees.
- Assessing which claims are actionable
Not every claim that an employee may have is legally actionable; likewise, not every employer may be in a position to assert a successful defense. Mediation may assist the parties in recognizing that the dispute may not be resolved in their favor by the court and that a settlement in which each party compromises may be the best alternative. Conversely, once the court begins to make decisions, one party may become emboldened and a compromise may become harder, if not impossible, to achieve.
Arbitration as a means to resolution
In mediation, the parties are not required to accept a solution recommended by a mediator. There are advantages to agreeing to arbitrate the matter, with a binding decision made by the neutral after a hearing. In arbitration, the parties may select their decision-maker from a panel of qualified and experienced neutrals, while in the court system the judge is randomly assigned and may not have the background or experience in resolving the dispute at hand.
In selecting an arbitrator, the parties may choose a neutral who is readily available to them and avoid the delays inherent in the court system, an especially important point with cases delayed following the COVID-19 pandemic. Contrary to some persistent perceptions, discovery is available in arbitrations, but the arbitrator has the ability to work with counsel to tailor the scope of discovery to fit the needs of the particular matter.
Having an arbitrator render a final binding decision has the advantages of lowering cost and increasing expedition, and parties have the ability to address any concerns about having a single person making a dispositive determination. While having a sole arbitrator is the norm, the parties are generally free to agree to have a larger panel, perhaps a tri-panel. And some arbitration providers have rules and procedures by which an arbitration decision may be appealed to a panel of appellate arbitrators.
In sum, alternative dispute resolution processes are effective in addressing workplace conflicts and, even when not strictly required by agreement, should be seriously considered by counsel seeking to address employment disputes.
Reprinted with permission from the March 13, 2023 edition of the NEW YORK LAW JOURNAL © 2023 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or [email protected]
Hon. Alan D. Scheinkman (Ret.) is a member of NAM’s (National Arbitration and Mediation) Hearing Officer Panel and is available to arbitrate and mediate cases throughout the United States. He is the former Presiding Justice of the Second Judicial Department of The New York State Supreme Court, Appellate Division, where he heard appeals of a wide variety complex litigation matters that included business disputes, labor and employment partnerships, landlord and tenant, commercial foreclosure cases, business receiverships, business torts, matrimonial and family law, trusts and estates, defamation, land use and construction, health law and wage and hour cases. As an appellate judge, trial judge and litigator, he has handled all types of employment matters that include breach of contract, trade secrets, confidentiality agreements, covenants not to complete, wrongful termination, discrimination, sexual harassment, and wage and hour disputes. Judge Scheinkman was voted the #1 Arbitrator in New York State in the 2021 New York Law Journal Best of Survey.
For any questions or comments, please contact Jacqueline I. Silvey, Esq., NAM General Counsel, via email at [email protected] or direct dial, 646-404-4661