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AFTER THE FACTS
A neutral dispute-resolution process that can bring feuding parties back to a working relationship and restore productivity to the workplace is an effective, constructive method.
The obvious first step is to direct an employee dispute to the human resources department However, in some situations human resources can make a problem worse. Suppose the dispute involves an older employee who believes the company for which he or she works discriminates against aging workers. The employee may have a dislike for personnel in human resources and a distrust of the company's method of resolving the dispute. If an employee believes the odds of getting a fair interview or investigation are slim from the start, the employee is less likely to participate in a manner that is productive to resolving the issue. At some companies, human resource policies permit the company to meet with an employee without counsel. If the company enforces that provision, the employee could feel betrayed and react even more negatively. Meanwhile, as the company realizes that a direct human resources review of the situation could worsen the problem, it may begin to look for better solutions. The Ombudsman
Employees may go to an ombudsman much the same as they go to human resources. The difference is that an ombudsman, an employee of the company, generally housed within the human resources department, serves as an intermediary. This person interviews the employee involved in the dispute, coworkers and management and makes recommendations to the human resources department and to management. What's wrong with this picture? Obviously, the ombudsman is a company employee and faces the same emotional hurdles as a human resource representative conducting the interviews. Not many corporate cultures have elevated the status of ombudsman to a role generally recognized as "neutral" within the corporate hierarchy. More often, the ombudsman is a stage in a process that generally leads to litigation. Why should an employee trust this arm of the company any more than human resources? In some companies, the office of ombudsman does not report to human resources. This is helpful, but where corporate trust is a major issue, the employee may not trust the integrity of the ombudsman process. A Neutral Fact-Finding Process
Neutral fact finding is a process-oriented dispute resolution vehicle. It takes the resolution out of the company's hands and into the hands of a neutral third party. It works best when it is part of the corporate culture through the human resources policy and is structured in an environment that the department, the manager or the employee can request. It may be optional or mandatory depending on corporate policy, but it works best when the parties can consent to the process rather than have it imposed on them. A simple form, called an intake form, initiates this process. It is available to all department heads and employees and to human resources. In a company with a collective bargaining agreement that allows union employees to use this process, the forms are available to union stewards and committee members. The form identifies the date, the party submitting the complaint, names of interested parties and a brief description of the issue. The ombudsman or corporate designee or, for enhanced neutrality, a neutral provider of dispute resolution services receives the form. Next, the parties select a neutral fact finder. Once the parties select a fact finder, either through a neutral provider list or a strike list, they schedule an initial caucus. This typically is done as a joint caucus. The neutral fact finder establishes the parameters, explains that the process is confidential, clearly defines the objective as the development of a win-win resolution and requests each party to explain the situation in a non-adversarial (noncompetitive) manner. After each side provides its overview, the neutral may ask some questions in joint session. Next, the neutral fact finder will have individual meetings with the disputing parties to bring out the issues and the underlying facts and to decide who will be the potential witnesses. This is not mediation The neutral fact finder is not testing realities or creating a solution at this stage. He or she simply is deciding the investigation strategy. These first sessions end with the understanding that the neutral fact finder will prepare an investigation plan and interview the necessary parties. The neutral fact finder asks the parties to the dispute not to discuss the dispute or the inquiry with any of the potential witnesses or their coworkers. This is important to the integrity of the investigation. An advantage to a third-party process is the increased probability that the parties will not discuss the matter. Employees frequently ignore a human resources request not to discuss the investigation. The human resources department schedules the interviews. This may be done in conjunction with the manager, unless the manager is the source of the complaint. It is important that parties to the, disagreement not discuss the issues or the pending interview. Thereafter, the neutral fact finder engages in confidential discussions with the witnesses and, if necessary, with other managers or individuals within the department. The neutral generally conducts his or her interviews in a conversational style, making extensive use of open-ended questions. The introduction to the interview is important. The neutral fact finder must gain the confidence of the witnesses through an assurance of confidentiality and an understanding that individual names will not be linked to any particular statements or conclusions. Therefore, the neutral does not record the interview. Depending on the circumstances, the neutral fact finder will either draft a report or provide an oral debriefing. In either case, an overview of the issue, scope of investigation and conclusions are provided. The conclusions typically will include a recommendation for specific action to address the issue. Sometimes, the neutral fact finder will recommend that no action be taken. The report should use neutral terms to state the recommendation, whatever it may be. The single most significant advantage of neutral fact finding is that, by inserting a review level that is not connected to management, the employer assures a greater sense of neutrality. Employees are more comfortable and more candid when they believe that specific comments will not be attributed to them and that their personal opinions will not be communicated to co-workers or management. Some argue that employees are fearful of being critical of management. Often, employees do not wish to be critical of the co-worker if the criticism might get back to the co-worker. Neutral fact finding reduces these concerns. What to Do With the Results
However, should the neutral report be binding? Whether or not binding, should the neutral report be admissible in a collateral proceeding such as a complaint before the Equal Employment Opportunity Commission or other administrative body or in civil litigation? As a voluntary administrative remedy, neutral (act finding should fall within the mediation privilege, and neither the results nor the investigation should be subject to disclosure or discovery beyond the scope of the parties involved in the investigation. In those situations where the findings are not binding, the neutral fact finder or a third party should be Permitted to use the findings in all effort to obtain a voluntary agreement. Corporations have found that use of a neutral fact finder who is also a skilled mediator permits the transition from investigation, to report, to a mutually agreeable resolution. A process that provides an outside review of employee grievances, that includes even-handed fact finding and that provides stated conclusions is an effective and constructive method of resolving workplace disputes. The earlier the parties undertake the process, the sooner people can get back to work.
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