Employers
are faced with many challenges in today’s economy. An economic meltdown and
recession which decreased gross domestic product; how to sustain a workforce
when demand for product or service has declined. Research shows there are six
(6) candidates for every available vacancy and fifteen (15) million people are
out of work. The national unemployment rate is 10.2 percent. Unemployment in
California equates the national unemployment rate. This is the highest rate of
unemployment since the depression. Economists are unable to inform employers
when they can expect to recover from this recession. Many private and public
sector organizations implement budget cuts as a first step to counter a decline
in business. Employers then turn to traditional cost cutting measures, i.e.,
reduction of the forty hour work week, part time employment; elimination of
employees’ insurance coverage, reduction in pay, right sizing, furlough, layoff;
and ultimately termination. We recommend “Applying Mediation," the best and most
cost effective process to implement when the goal is to substantially cut
organizations costs.
Mediation is a process that
emphasizes dialogue to decide the best and most profitable way to remedy a
decline in business. Mediation requires a neutral forum. It neutralizes
authority and power factors that often inhibit discussions and participants from
fully expressing themselves. The process removes barriers and helps parties
better understand conveyed communication. It eliminates competition and promotes
collaborative and consensus decision making as a team to work through issues in
dispute.
The mediation process
avoids litigation should traditional cost cutting measures such as rightsizing,
layoff, or termination become imminent. Adjudication of a civil discrimination
claim may require 4-5 years litigation. In some circumstances (mitigation of
damages) an employee may remain employed throughout litigation. If this should
occur it may become a distraction for employees to focus on non-work related
issues rather than the work product perhaps wandering how they might fair in a
similar situation. The scope of mediation allows us to surface an issue and the
areas affected. Hence, mediation is a cost prohibitive process that prevents
employment discrimination claims and promotes dialogue among the parties rather
than litigation. It minimizes disruption within the workplace.
Mediation
will change employees’ behavior, conduct and attitude; improve his or her
quality of work, level of productivity or service (with a smile). It engenders
attention and listening too employees, critical elements of mediation that are
required when you endeavor to understand a dispute. The change focuses on the
"team" concept rather than "individuality" in achievement of a company’s goal.
You can be an outstanding employee and a team player. Employees should realize
that solicitation of new customers and retention of current ones is a company
priority. Customers attract other customers and customers are critical too
expansion or retention of a workforce.
When
conflict or disputes occur an attorney is not the appropriate peace maker. You
should retain a professional Mediator, the parties involved in the dispute and a
company official with unlimited authority to enter into a settlement agreement.
These are the relevant parties that should participate in mediation.
Mediation crosses all boundaries
within a company from the Board of Directors and CEO to line and staff. In order
to effectuate the mediation process successfully there must be total commitment
within the company from the “top down.”
The Mediator will concentrate
the parties focus on the subject matter and assure they will have an opportunity
to participate without intimidation or fear of other participants or their role
in the process. Confidentiality encourages parties to speak candidly and require
that discussions remain confidential.
The “Neutrality” of a
professional Mediator is equally important to the parties and the
mediation if you desire a fair process. You should trust your Mediator and
respect his or her impartiality, fairness and neutrality. These are three
critical characteristics of an unbiased professional Mediator. Neutrality is an
important and critical component of mediation particularly when you are
listening to several different perspectives of an issue in dispute. When
conflict or disputes arise in the workplace immediately address the issue. The
benefits derived from your immediate intervention with assistance of a
professional Mediator will be immense. Working together to resolve an issue will
minimize disruption and employee productivity in the workplace, major cost
cutting factors that otherwise would compound company costs.
The Mediator may require other
parties to participate in the mediation. A Mediator and the mediation process
often will preclude recurrence of the same or similar issues. It will deter
employee conflict, promote employee productivity, and avert disruption in the
workplace, a major cost savings. Instead of avoiding discussion of an issue
immediately retain the services of a professional Mediator while activities
relative to the issue(s) are easier to recall. It decreases lapse in memory and
events remain clear in the parties’ minds. There is no one else who can explain
the activities that occurred in a dispute better than the parties themselves. An
exception may be a witness who observed the dispute. However, he or she will not
know the origin of the dispute or the hearts and minds of the parties at the
time only what was witnessed.
We have resolved issues and
disputes over the years not realizing mediation was the method that led to the
solution. Mediation has been used to resolve disputes in the home, social
settings, the community, politics, disputes between countries, and in the
workplace. Attorneys did not participate in the mediation process in earlier
years as they do today. And during those times the success rate for mediation
was very high. However, what has become a familiar phrase in our legal system is
plea bargaining, a negotiation tool attorneys use during adjudication of court
cases.
When an employer includes
employees in company discussions such as, a decline in business and the search
for a remedy, it stimulates interest and raises their level of enthusiasm. They
perceive themselves as an integral part of the company throughout the
discussions and thereafter. Employee participation raises the level of integrity
between an employer and employee, eliminates a great deal of uncertainty in
their employment and increases employee morale.
When attorneys are involved in
conflict or disputes the focus often shifts from a party’s open minded or candid
response to acquiescence. Once an attorney is retained he or she questions the
parties, ascertains liability, obtain declarations, and prepares a defense.
Employees are reluctant to openly discuss matters with a company’s attorney in
fear of retaliation.
Conversely, the mere presence of
a Mediator initiates open and candid discussion with employees on account
of the Mediators’ neutrality and in their discussion employees are assured
confidentiality. A Mediator is more likely to engender truthful discussion
regarding the issues in dispute than an attorney for the aforementioned reasons
and it engenders another enormous cost savings and a process that enhances
employer and employee work relations.
Instead of using traditional cost cutting practices such as
litigation, furloughs, and layoffs, endeavor mediation it has a plethora of
positive benefits that will increase your confidence and trustworthiness in its
process and when compared with traditional practices the costs are much less
than litigation and any loss in employee productivity is minimal.
If you remain interested and want to know more about
mediation telephone 310-444-3003 or visit our website:
www.ThomasResolutions.com
Thomas R. Watkins
is a Fellow of The Business Forum Institute and the Principal of Thomas Resolutions. He is a licensed Mediator (City
of Los Angeles), Certified Arbitrator, Mediator, Settlement Officer
(Los Angeles Superior and Municipal Courts), Certified Advanced
Practitioner Employment Mediator ACR (Association for Conflict
Resolution), Certified Mediator and Arbitrator with FINRA (Financial
Industry Regulatory Authority). He holds a BS degree and MPA Degree
in Public Administration, from the University of California
Dominguez Hills. Thomas studied law at William Mitchell College of
Law in St. Paul, Minnesota and is a member of the Los Angeles County
Bar Association. He has held a number of positions with the Federal
Government, most notably with the United States Equal Employment
Opportunity Commission. He is President of the Association for
Conflict Resolution LA (ACR-LA). He is currently serving his second
term as President of the ACR Los Angeles Chapter, and is a former
member of the National Advisory Council.
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