Conflict Management Practice Notes

The Importance of Follow Up

One of the reasons that coaching has become so successful is that we contract out accountability for our goals to another person. That person-the coach-checks in with us on a regular basis to see how things are going without taking responsibility for the accomplishment of the goals themselves.

When we follow up after a mediation that has produced an agreement, we are essentially doing the same thing. We are not taking responsibility for the implementation of the agreement, but we are creating a forum for participants to report back on how things are going and to explain both the successes and challenges since the agreement was reached.

There was a time when I considered a follow up a courtesy, something non essential but ‘good’ to do. More and more, I am of the view that follow up is a vital part of any mediation, especially in workplace mediations where the disputants have worked out new behavioral arrangements.

Reasons to Follow Up

First and foremost it signals care. The participants know that you share in their desire to succeed. In addition, it signals your realism. We all know how hard it is to change habits. Over time, people develop dysfunctional ways of relating to one another. Agreeing to change behavior is one thing. Actually changing it is another. It also signals an opportunity. Fine tuning an agreement or making adjustments based on lived experience is not a sign of failure but of maturity. By following up you are creating an opportunity for the participants to trouble shoot and consolidate lessons.

The entire focus of the follow up meeting is learning. Following up is not about blame, but continuous improvement.

How to Follow Up

My preference is to follow up about 45 days after a mediation has produced a behaviorally specific agreement. Sometimes I check in with each of the participants by way of a phone call. At others, I actually convene a meeting where we all share how things are going.

I establish rapport by listening reflectively to whatever is said when I call or we start our meeting. As much as possible I validate emotions and explore whether it is possible to reframe any frustration as care, disappointment as commitment, and anxiety as courage.

Once I sense that the participant/s are comfortable and ready to open up, I orient them to what we are about to do. I remind them that the process is still confidential and may use open ended questions such as:

• What aspects of the agreement you reached have been working well?
• What have you done differently since reaching the agreement?
• What has the other person done differently since reaching the agreement?
• What aspects of the agreement are causing frustration/disappointment/anxiety?

I may also used close ended questions, as needed, such as:

• Have you been following the terms of your new agreement?
• Have you been meeting regularly as proposed?
• When last did you look at the agreement?

When we follow up in a shared meeting I get participants to share specific situation that have been challenging. Based on what they share, we may do some additional skill building and then I have them do what I call a ‘Take Two.’ They get to replay the situation and with some supportive coaching and encouragement, see that it could have worked out differently.

Conclusion

To make sure that follow up gets the respect that it deserves, I now include it in my proposal when asked to mediate. I explain that it is an important part of the process and just the way that I work. In many ways, mediators are like coaches, asking the accountability questions, while leaving decision making and implementation responsibility where it belongs-with the participants themselves.

Managerial Mediation and Arbitration

I will always be indebted to Dan Dana for introducing the concept of the manager as the mediator to me. It formed the basis of his powerful training – with the same name- that helped shift the managerial paradigm for thousands of managers who have benefited from his training. Dan was the pioneer who blazed the trail.  In this short practice note I want to consolidate and reiterate his fundamental insights, and of course add my two cents!

A review of the history of conflict management in the workplace suggests that the way in which decisions that impact the employment relationship have been made, have shifted from a focus on the power dynamics, to who has the legal or contractual right and finally to what is in everyone’s best interest. Yet there is a way, like the evolution of our triune brain, in which each iteration has built on the other. So to talk about a purely interest based approach does not make sense, as the rights and power dynamics are always being considered, if not consciously, then unconsciously.

In fact, Managerial Mediation represents an approach to addressing workplace conflict that is supportive of interest based relationships, yet also addresses rights and power. It allows managers to bring employees together with the stated purpose of reaching an understanding based on what is important to them (their interests) within the bounds of the law, contract, and policy (their rights), without the manager having to impose the decision him or herself. It does so within the context of the existing power differentials that do exist between the employer and the employee, between the supervisor and the employee and even between two peers (their social power).

Managerial Arbitration also has the potential to address power, rights and interests. It is an approach where the manager brings employees together, listens to their ‘stories” and makes a decision for them based their status in the organization (their social power), their rights (by virtue of applicable company contract, policy, and law) and finally, but to a lesser extent, their and the managers own interests.

The vital difference that makes the mutual decision of the employees’ superior to that of a decision imposed by a wise manager is that there is buy in through commitment to their own decision. In addition, when we create a forum where the perception of right and wrong will be inferred from a decision, as is the case with arbitration, the communication that takes place is more likely to be adversarial and combative. By contrast, when managers facilitate two employees trying to work something out, as with mediation, the communication is open, there is more opportunity for reflective listening, and of course creative problem solving.

Finally, and this to me represents the new frontier, organizations are showing a willingness to address the emotional impact of their decisions. They are recognizing that when decisions are based on power, rights and interests alone, they settle the issues, but don’t necessarily resolve or reconcile them. If Managerial Arbitration was spread thin in its attempt to address interests, then it is really found wanting when emotional impact is considered. Managerial arbitrators of right and wrong, who adjudicate and impose decisions in the way they manage do not typically take into account an employees feelings.

By contrast, the manager as mediator is able to facilitate an approach that is informed by it all-the power dynamics, the rights at stake, the interests at the heart of it all, and significantly the way everyone feels about it. When they are successful, the employees address their challenges in ways that generate creative solutions that last.

It is worth remembering that if managerial mediation doesn’t work out-whether through a lack of skills, time or even willingness, the manager can always revert to the more directive managerial arbitration route and impose a decision.

What Would An MBA Student Do?

Exploring alternatives with disputants (the things they can do on their own away from the table) requires tact and is best done after high levels of rapport have been established. Given the sensitivity of the communications, it is often done in the privacy of separate meetings (caucuses). Another frame we often use to describe alternatives analysis, is reality checking. We help the disputants explore the consequences of not reaching an agreement at the mediation and make their own informed decisions.

If the parties are represented, their attorneys can play a valuable role and become a mediator’s ally. You ask the questions, and the attorney answers them. As a simple example of what I mean, consider how helpful it is to be able to ask an attorney:

• How long do you think it will take to get to trial?

• And, will that forum-the court of first instance-represent the end of the road if you ‘win’ in court?

• By the way, if you are not willing to guarantee the outcome to your client, how confident are you that you will ‘win’, expressed as a percentage?

All of these questions are important reality checking questions that help the disputant explore the classic alternative (court) and are better answered by someone other than you, and importantly, by someone they trust. In a legal setting, normally that person is their attorney.

But what if the disputants are not represented?

As a mediator, answering any of these questions can be dangerous if only because it many appear that you have an agenda. You are trying to convince the disputant to settle because it will take so long, or because you don’t think they have a strong case. If that perception forms you will have compromised your perception of even handedness.

I once mediated a dispute that involved legal issues, and for which an EEO complaint had been filed. However, neither the complainant-a high ranking employee who was still employed, nor the manager were represented at the mediation.

When we got to the stage in the mediation where it is customary to reality check the disputants alternatives, we stayed in a joint session, and I commented that it was actually a pity that neither side was represented in the mediation. I explained that if we were going to reach a settlement they would have to conclude that what they worked out together was better than going to court. And that answering the questions that I would normally pose to their attorneys would compromise me.

They seemed to get it, but both reiterated that their counsel had told them they had strong cases. As mediators know, when impasse occurs you have to do something different. Clearly, being transparent about my dilemma wasn’t going to carry the day. I needed to change tack.

It then dawned on me that while attorneys were credible in this situation, the legal issues were not that significant, and that what it really came down to was whether it made business sense for them to litigate over the dispute.

I needed to introduce an agent of reality that would get them to shift.

Knowing that they were both business majors, I asked, what they thought an MBA student would recommend, if they were presented the fact patterns that they had presented to me. In other words, I was asking them to write a paper on what they thought the best course of action would be. Would they recommend settling and making peace or would they argue for litigation and all out war?

It worked! I could see the dissonance forming before me. Of them realizing that the brightest students would be saying, compromise, find a way to work this out and take care of business in a manner that felt fair to both.

As is so often the case, once the let go of the fight and committed to working out a solution, they were able to. I’m not saying it was easy, and that they just rolled over. But they were determined to work something out before I left.

As we finalized the terms of the memorandum of settlement they both joked with one another that it was those MBA students that had got them! Never discount the importance of reality checking, and of finding a credible agent of reality, even if they are not able to make the mediation!

Tears In Mediation

It is only a question of time before someone cries during one of your mediations. For a new mediator this can be unsettling. What does it mean and what intervention options are available and indeed advisable?

Someone once said to me that tears on the outside are a sign of healing on the inside. If we remember that when people are stuck in conflict, it’s almost like they are frozen, then tears can also be a sign that they are starting to thaw, and change. Both these frames to look at tears suggest potential, and that as a general rule, tears are a good-not bad-thing.

In my experience, being comfortable with crying (like the exhibition of any strong emotional states) and being able to fully validate what it is that the person who is crying is feeling, can go a long way to facilitating a lasting resolution of the conflict.

Ken Cloke (an insightful thought leader in the field of conflict resolution) has articulated how there are different levels at which we can resolve a conflict. It starts at a physical level when the parties stop fighting. The image that always comes to mind is of two children being pulled apart.

We can settle the issues-as we typically see happening in a court arena. At a cognitive level, there is agreement on what needs to be done. Another good example is the way the dispute between Israel and Lebanon was resolved in 2006. They stopped fighting, and resolved the border dispute. I think we are all know that the conflict is still simmering.

Getting to a lasting resolution requires that we traverse the emotional waters and deal with our pain and discomfort. This is not easy. For the most part our emotional templates were developed when we were young and unless we have worked on increasing our emotional literacy, we and the disputants we encounter in mediations will be unaware of their templates.

If people are to move beyond their anger, grief or fear they must feel it. Suppressing or sedating emotional pain or discomfort doesn’t work over a long period of time. Tears are typically a sign that the emotional pain and discomfort are being addressed –that a thawing or healing is taking place.

The cynics amongst you will correctly point out that tears can also be used to manipulate and deflect responsibility. Even if that is true at times, my view, as a mediator, is that something significantly upsetting is still occurring, and that the tears remain a sign of desperation that should be validated with respect.

Beyond validation-letting the person know that their emotional response is valid from their perspective-we should consider whether to meet with the person who is crying in private. However, beware of sending a message that tears are not a good thing, by ushering the person away.

Given that crying can constitute a loss of face for some, and that they would prefer the opportunity to cry in private, it is wise to check in and get a sense of what is needed. When someone’s tears follow what appears to be an ambush, or where they feel out of control, meeting in private may be a good idea.

Obviously, having handkerchiefs is a good idea, but offering them should not necessarily be the first response. Better to anticipate and have them available. Offering them can imply that the response is inappropriate and worse, take the person away from what they are feeling.

Beyond the more intuitive reasons to value tears, it is interesting to know that from a physiological point of view tears are a way that the body releases stress related hormones like cortisol.

So the next time you notice someone start to tear up during your mediation, see is as an opportunity to address the emotional energy. Be sensitive, and work to validate the emotions associated with the tears. It could be the very thing that helps the parties reach a lasting resolution.

Welcome!

This new blog is the result of feedback I received from readers of my Conflict Managment E-Newsletter. Many indicated that they wanted me to write more, and to share my pracitical insights about the management of conflict through articles, case studes, practice notes, and in the form of tips.

I have created a number of categories that appear in the left hand navigation bar. My intention is to add at least one new entry a month that will address the categories that I have created.

Please feel free to comment and add your thoughts as we go along.

With appreciation for your support,

John Ford