2011 ACR-GNY Conference

“Innovative Housekeeping – In-house Dispute Resolution Programs”

Outline

Abayomi Ajaiyeoba ("Yomi"), Esq., certified mediator, arbitrator

(917) 755-5886

Deputy Managing Attorney

Office of Administrative Trials and Hearings (“OATH”)/Environmental Control Board (“ECB”)

66 John Street, 10th Floor

New York, NY 10038

Sheea T. Sybblis, Esq., certified mediator

(718) 812-5831

Law Clerk

U.S. District Court for the District of New Jersey

50 Walnut Street

Newark, N.J. 07102

This workshop will focus on the design, development and implementation of alternative dispute resolution programs in the private sector. It will include a discussion of proper assessment tools and ways to utilize technology to reduce the costs of training, while maintaining quality programs. Issues with preserving the integrity of the process, as well as sustaining neutrality and confidentiality, will be discussed.

  1. Overview
  2. Why ADR?
  3. As employees have ongoing relationships with their employers, it is often ideal for them to be able to settle their issues in mediation and preserve the integrity of their relationship.
  4. This helps prevent loss of good employees and the cost of recruiting and retraining new employees.
  5. As a result of mediation, companies are able to minimize claims (particularly EEOC claims) and avoid the time and money it takes to investigate and respond to a claim.[1]
  6. In minimizing claims, it should be noted that mediation can provide a more expedient and long lasting resolution when compared to the grievance route.
  7. Why develop in-house programs for ADR or systems to refer internal issues to ADR?
  8. Mediation is often used to resolve interpersonal conflicts. The value in having ADR in work setting is to address behaviors that may impact the work environment before they escalate. They can help to improve communication and morale.
  9. People bring disputes to court, but it is important to understand how to use mediation and bring ADR into different settings.
  10. In 1997, private companies reported using a wider variety of ADR methods than federal agencies.[2] These programs continue to grow and evolve.
  11. There are many benefits to developing relationships and communicating with administrative tribunals and/or courts regarding ADR.
  12. Integrated conflict management systems – provide process or system for preventing, managing, and resolving conflicts that focus on the organization. These systems are designed to identify the root causes of conflict in an organization and address them by implementing systematic changes.
  13. Developing internal ADR programs
  14. Assess needs of the organization
  15. Cost assessment
  16. Identify resources
  17. Addressing ethical issues
  18. Examples of sources of conflict in the workplace
  19. Needs and wants that are not acknowledged or addressed
  20. Perceptions
  21. Assumptions
  22. Expectations
  23. Personality conflicts
  24. Lack of willingness and/or ability to deal with conflict
  25. Maintaining Neutrality
  26. In an employment setting or internal program, is ADR ever truly neutral? What about the interests of the company influencing neutrals?
  27. The third party “neutral” may be an in-house employee trained in conflict resolution or an external mediator or arbitrator. Often issues with neutrality may come up with in-house conflict resolutions specialist. The third party “neutral” may be addressing or facilitating discussions involving complaints about colleagues or people with whom the neutral previously worked. The parties may perceive the in-house person as biased due to previous work-related interactions and known loyalties, as well as assumed personal and professional alliances.
  28. Confidentiality
  29. What about confidentiality? How will issues that compromise confidentiality be addressed?
  30. Issues that may arise include, for example, reporting requirements and conflicts with the employer’s policies. Mediator in workplace setting may be required to report on the outcome of mediation to upper management. This should be disclosed to the parties before they begin mediation.
  31. Implementation and Training
  32. Must have buy-in for the process; support of organization and management
  33. Has to be a collaborative process
  34. Training is an essential component of the success of ADR in work place settings
  35. Train on types and methods of ADR (focusing on those used by the organization)
  36. For example, referrals to court annexed programs, mediation, arbitration, ombudsman
  37. Role of court-annexed programs
  38. Make sure that everyone involved understands the process
  39. Simulation and Role Play
  40. Simulations will explore the dynamics of employment relationships and discuss the effectiveness of mediation in resolving conflicts between manager/employee and employee/employee.
  41. Technology
  42. While face-to-face mediations and trainings are ideal, it is not always feasible or can be quite costly due to various travel arrangements and scheduling issues.
  43. Online training program development of additional mediation training programs to increase efficiently and manage costs. This would include in-services for mediation and arbitration available in electronic format.
  44. The use of technology to facilitate mediation training can include interactive components using FaceTime or Skype technology. Organizations can even be able to set up simulated mediations and trainings at low cost. These platforms can also be used to conduct mediations when appropriate.
  45. All that is required is a computer, webcam, and internet service.
  46. The mediator controls the process.

Sample Resources and References

Designing Integrated Conflict Management Systems: Guidelines for Practitioners and Decision Makers in Organizations, Society of Professionals in Dispute Resolution (2001)

Lipsky, David B., Ronald L. Seeber and Richard D. Fincher, Emerging Systems for Managing Workplace Conflict: Lessons from American Corporations for Managers and Dispute Resolution Professionals, San Francisco: Jossey-Bass, 2003.

Brett, Jeanne, Stephen Goldberg, and William Ury, Designing Systems for Resolving Disputes in Organizations, American Psychologist: 162 (1990).

Brandon, Mieke, Tips and Traps in Workplace Mediation, ADR Bulletin: Vol. 7: No. 4, Article 1(2004). (available at: http://epublications.bond.edu.au/adr/vol7/iss4/1)

EEOC Litigation statistics: http://www.eeoc.gov/eeoc/statistics/enforcement/litigation.cfm

1

[1] Corporate Counsel's Guide to Alternative Dispute Resolution in the Employment Context, Appendix N, Panel 1 (Nov. 2010).

[2] GAO Report Surveys ADR Use in Federal Agencies and Private Companies: Mediation is ADR Method of Choice, 52-FALL Disp. Resol. J. 6 (1997).