How to tackle the dispute resolution debacle

The dispute resolution systems in the UK are broken and they have been for many years. Governments, of all colours, have tried to develop new approaches for managing workplace disputes. However, whenever they have got close to implementing a system which looks like it could work – based on dialogue, interest based problem solving and collaboration - they lose confidence and revert to a litigation inspired system with a focus on formal and adversarial procedures.

Policy makers, obsessed with a win/lose principle of dispute resolution, pit the disputing parties against each other, polarise them and in so doing irrevocably damage their relationships. These processes are stressful, costly and time consuming to boot. There is no coincidence, in my view, between this tragic and woeful fear of embracing a new approach for managing workplace conflict and the following statistics:

•          Four out of every ten employees in the UK has experienced some form of interpersonal conflict within the past 12 months
•          The UK has one of the lowest productivity levels of the G7 nations
•          The UK is ranked 9th out of 12 leading industrial nations for employee engagement
•          Unresolved conflict costs the UK economy a staggering £33bn a year according to CEDR/CBI

Of course, the grievance procedure, that wicked, pernicious and damaging document, amplifies the very worst of these formal procedures – directly within the organisation itself. If you have a workplace conflict, you really have got no chance of securing a constructive outcome if you were to apply a traditional grievance process – it’s little wonder to me that The BBC’s ‘Homes Under the Hammer’ is so popular.

A decade of division

Following a major review, by Michael Gibbons, of the statutory dispute resolution regulations (DRR) in 2007 and the repeal of those regulations in 2008, it was widely hoped that the UK would experience a seismic shift in direction with an enhanced focus on alternative dispute resolution (ADR).

Approaches such as mediation were cited as being major drivers of resolution and have been proven by academics and others to work in well over 90% of cases. It seemed that the Resolution Revolution had begun and we could put our energies into resolving disputes, delivering fair and just outcomes and getting the parties back to work rather than improving the P&L of many an employment law firm - the only real beneficiaries of such a litigation inspired model of dispute resolution.

Fast forward ten years and the UK’s Supreme Court has just ruled that the changes made in 2013 to the employment tribunal system, specifically the introduction of fees, were unlawful and discriminatory. What a waste of time, money, energy and a damned good opportunity. Acas and Ministers cooked up a system of dispute resolution behind closed doors that was not fit for purpose and which was unlawful and discriminatory. Unbelievable. It flew in the face of the recommendations from the Gibbons Review and conflict management professionals such as myself and it flew in the face of what any reasonable, right thinking person wanted to see put in place.

So where are we now?

The Employment Tribunal system is in disarray, the Early Conciliation process (or late conciliation as I call it) is not fit for purpose and both Acas and the UK Government are left without a meaningful system for resolving workplace disputes at a time of continuing austerity and a focus on implementing the outcome of the EU referendum. Employers and employees do not need this distraction.

The risk, as I see it, is a knee jerk reaction, poorly thought through policy making and the revival of the old system, albeit with a new name.

It’s time to think again

However, more and more organisations are thinking again. They are developing a new approach for managing conflict at work and they are embedding systems of dispute resolution which are fit for the 21^st Century and deliver outcomes which:

•          Are less costly
•          Are less stressful
•          Protect, rather than damage, relationships
•          Engage all parties in adult to adult dialogue
•          Develop collaborative outcomes
•          Promote greater, empathy, mutual understanding and insight
•          Deliver fair and just outcomes
•          Bring HR, leaders and unions together to integrate a whole systems approach for managing conflict

Organisations including Tesco, Capgemini, The Metropolitan Police, Parcelforce Worldwide, Royal Lancaster Hotel, BNY Mellon amongst many others, are developing Resolution Policies and are using a wide range of ADR approaches, such as mediation, to secure lasting outcomes to workplace disputes.

What needs to happen now?

If we are going to see a shift in the way that disputes are resolved, whether it is through internal processes such as grievance procedures, or external processes such as Employment Tribunals, it is up to every HR professional, business leader, manager and union official to come together and begin to reframe the way that they view and manage conflict.

Where conflict is acknowledged, where it is treated as a strategic priority by senior leaders; where a balance of proactive and reactive remedies are available; where there is an organisation wide emphasis on early resolution; where mediation, facilitation and coaching are actively encouraged; where adult to adult dialogue, empathy, insight and flow are valued; where line managers are equipped with the confidence and the competence to manage conflict; where HR processes reflect the values of the organisation; where rules and regulations encourage, rather than impede, trust and common sense; where HR, unions and managers pull together and demonstrate a genuine commitment to pluralism; where lessons are constantly being learned; and where all people (including alleged wrong doers) are treated as human beings with real feelings and real needs - the impact on employee experience, on managers, on culture, on customer experience and on the bottom line can be beneficial and lasting.

Conversely, where conflict is treated as an afterthought or it is ignored; where having a conflict in your team is viewed as a sign of failure; where a resolution process only starts once the parties have dug their trenches; where managers lack the confidence, the courage or the competence to handle conflict effectively or they are afraid that doing so will result in career damaging accusations; where the parties are subjected to cumbersome and divisive HR processes; where the organisation treats disputing parties like naughty children or helpless victims; where blame and division are an accepted bi-product of conflict, where HR, unions and managers pull in different directions; where terms like dialogue, empathy, insight and flow are widely misunderstood;  and where the reliance on expensive litigation based remedies is seen as being an acceptable cost of conflict - the impact on employee experience, on managers, on culture, on customer experience and on the bottom line can be damaging and lasting.