Not long before the world as we know it changed dramatically as a result of the coronavirus pandemic, I was instructed by a law firm to mediate a workplace dispute between two directors of a large company. Let’s call them Senior and Junior. The HR head decided it was too hot to handle internally, and with a grievance procedure launched, performance management waiting in the wings, the possibility of a tribunal claim and disability discrimination lurking with a potential uncapped pay-out, felt that the only way to try and resolve the dispute that wouldn’t damage the individuals involved or the wider public reputation of the company, was to bring in an outside neutral workplace mediator who wouldn’t be on anyone’s side. Cue me.
Of course, I was delighted to be asked-this is meat and drink to me, the harder the problem, the more I’m interested. But, as always, I was a little nervous-butterflies were abounding- it was clear that the stakes were high for everyone concerned.
I had a longish chat with the instructing solicitor-normally I’d want to see the HR file and the grievance. HR didn’t want to release that information-additionally it transpired that the person who was the subject of the grievance hadn’t even seen it, and wasn’t happy about that either. Normally I’d insist, but apparently HR were concerned that if I saw everything it might colour my view. There is a school of thought amongst workplace mediators that sometimes it’s almost better not to see anything in writing at all, just in case it does cause bias to arise in the mediator, and that you are better to get the story from the horses’ mouths. On the basis that I would be given a short chronological precis and that I would get unhindered access to chat to both Senior and Junior separately in advance of the mediation, I agreed that I would take it on.
Conflict Types or Styles
As mediators we often think about people as having conflict types or styles. Not everyone approaches conflict in the same way. Broadly speaking there are five conflict styles. No one fits all the parameters of each type exactly, but most of us have clear tendencies to be closer to one or perhaps two styles. It is possible to measure your own conflict style objectively – for more information see the Kraybill Conflict Style Inventory which is easily found through Google.
The five conflict styles are Directing, Co-operating, Compromising, Harmonising and Avoiding. To complicate matters many of us change conflict styles depending on how ‘hot’ the conflict is. For example, in a normal, less heated discussion, I am quite Directive-I ‘see’ where we need to get to and the ‘best route there’ and I would prefer the situation to develop that way. However, when conflict heats up, my conflict style in a ‘storm’ transforms into being a Co-operator (with a hint of a willingness to Compromise!).
‘Directors’ (those with a ‘Directing’ style) have good points-they are clear, decisive and they pay great attention to detail; often they are leaders and can be good in a crisis. They have bad points-they often aren’t good at co-operating with others and they often don’t want to compromise. When they come up against an individual who is an out and out ‘Avoider’ of conflict, they can become enraged at that person’s unwillingness or inability to engage in discussion.
‘Avoiders’ are the opposite of ‘Directors’-when the storm approaches, they often go into their shell; they withdraw and don’t want to engage. They don’t, or can’t, do detail and shouting at them in an increasingly loud voice (or openly considering performance management) causes them to retreat even more-or to go off sick.
These two conflict types or styles are at the opposite end of the spectrum, and they are the hardest conflict styles to bring to the same table for mediation purposes.
Between these two extremes of conflict style you find ‘Co-operators’-they want to get things done, but they want to get there by agreement with others, and their weakness, in extreme cases, is that they can take a long time to get to a decision-when crisis calls for the decisive action of a ‘Director’. Further along the continuum you find ‘Compromisers’. They are different from ‘Co-operators’, although there is an overlap. For some mediators, ‘compromise’ is a dirty word-it denotes for them a non-ideal resolution-not win, win because both parties may give up something important; the resolution satisfies no one and can turn out to be a bad resolution, simply storing up problems for the future.
I don’t agree with that characterisation of ‘Compromisers’-my experience in all negotiations involving law and mediation is that most outcomes do involve a degree of compromise and people do have to give up some of their ‘wants’-the trick is to make that as palatable, constructive and creative as you can-especially if there needs to be an ongoing working relationship between two work colleagues. Finally, just before we reach the ‘Avoiders’, we find ‘Harmonisers’. They want peace at all costs, and if push comes to shove in a storm, their position will be ‘whatever’ – they’ll give in for the sake of peace. Obviously, this can lead to really bad outcomes for everyone, not just the ‘Harmonisers’! Of course, everyone would like there to be harmony in an ideal world-but not at all costs and especially not at a cost that is detrimental only to you!
In conclusion, we all have aspects of all the different conflict styles built into us-but we tend to exhibit more characteristics of one or two. Sometimes it is appropriate to ‘avoid’ involvement in a workplace dispute-if there is a fall out between people in a different part of the team-for which you are not directly responsible, and if you are asked to give your opinion, which might amount to ‘stirring the pot’-it would probably be wise to ‘avoid’ doing this and becoming involved in that conflict-after all you won’t be the manager responsible for resolving it! What we all need to do is be mindful of our own conflict styles and trying to become better at using the other conflict styles-when that is appropriate! A counsel of perfection, I know!
The Protagonists, their Conflict Styles and the Problem
Back to our workplace conflict in the mediation. I had a long chat with Senior and Junior separately. They were high up in the company, but Senior was in charge of an overall team and Junior was a direct report to Senior. Both were in their 50s, both in highly responsible positions, and both had worked their way up from the bottom. Both were creative. Junior had been there longer and had been brought in to create from scratch a computer application that linked several large organisations, and provided them with technical support at cost. This had initially worked well-but there were ongoing difficulties. Senior had joined the organisation later and was in charge of a much greater area of responsibility; Junior, who had been more or less independent, then became a direct report to Senior. This loss of independence and the advent of a new degree of oversight was clearly one of the issues.
Senior was exceptionally able-having a clear view of overall strategy and direction-and could see where the problems were both in execution of necessary work tasks and in the weakness or lack of technical ability in at least some of the inherited personnel. In fact, Senior identified that at least two direct reports to Junior were actively undermining Junior. Senior took early, direct and decisive action in relation to these people, as a result of a concern that Junior’s ability to deliver was being undermined by them. Senior was very much a ‘Director’ in conflict style – rapid analysis of a detailed, complicated situation, identification of the necessary solution, and pretty ruthless enforcement action. What other people thought about that wouldn’t have seemed important to Senior and there was no room for discussion or agreement with others before necessary actions taken. Actions were taken with good intentions-one was to support Junior so that Junior could become more effective, and the other was to maximise the overall good of the organisation.
Having taken decisive action, Senior expected that Junior would be freed up and be able to become much more effective than hitherto. Senior quickly found that that was not to be. Having correctly identified issues with more junior members of staff, what Senior had not appreciated was that Junior, whilst being very creative, didn’t have the same level of drive that Senior had, and was not able to engage at the same high level-in fact was struggling to engage at all. This lack of drive or enthusiasm upset Senior. Senior started to seek a higher level of oversight, wanting more reports-effectively micro- management, getting angry and upset about a lack of progress by Junior. Junior resented interference in what Junior regarded as Junior’s own sphere. What Senior didn’t appreciate, was that Junior as well as struggling to perform at work was dealing with physical illness, psychological difficulties and a breakdown in relationship with their significant other. In addition to these physical and medical difficulties and now faced with increasing, forcefully expressed demands, for a better performance at work, Junior’s ability to cope at work gave way-Junior was off sick repeatedly and for a longish period. By now the conflict itself had already lasted for approximately a year.
It would be accurate to characterise Junior as an ‘Avoider’. Junior wasn’t able to engage with the detail in what Senior regarded as constructive criticism. Junior ignored requirements to report in writing-which were required from everyone. Junior simply withdrew-the more Senior sought to engage with Junior, the less Junior was able to.
Junior felt trapped-there was a family to support. There was a suggestion of a compromise agreement-Junior couldn’t afford to lose the job and had doubts about getting another at their age. Anyway, despite the criticism, Junior felt a good job had been done in the past and could be again in future if Junior was given the chance to regroup.
Senior, looking at it from a ‘Directing’ perch identified lack of performance and the prospect of performance management arose.
In response, a grievance was lodged and the words ‘disability discrimination’ appeared. Junior felt they had their back to the wall, didn’t know what to do and so reverted to ‘attack is the best form of defence’. Senior was very unhappy to be the target of a grievance or an allegation of disability discrimination, which Senior felt was entirely unmerited. They weren’t able to talk to each other anymore, far less listen to each other. They both struggled to see the perspective of the other, and both felt that they were right and that the other was wrong and responsible for the situation in which they found themselves. Conflict had reached boiling point.
The Mediation and use of Counter Attitudinal Advocacy
After listening to Senior and Junior at length in separate conversations, I thought to that it was going to be difficult to get them to really listen to each other, which is what we try to achieve in workplace mediation. The normal approach is to let each party have their say uninterrupted, while requesting the other to listen and vice versa. The mediator will often ask clarifying questions and summarise what each has said and seek their affirmation. If there are areas of agreement, the alert mediator will highlight these. All that presupposes that each party is listening to the other. Experience tells me that often people aren’t that good at listening to each other properly-they are often trying to anticipate what the other person is going to say, and thinking internally about what they are going to say to rebut that. In this case I thought, and worried, that the conflict was so hot, there was no way Senior and Junior would be able to really properly listen to each other.
I decided on a novel approach (for me) – Counter Attitudinal Advocacy. I’d seen it written about, but never practised. I worried that it was risky and may not work-but I also thought it was the only way I could use to get Senior and Junior calmed down enough to really listen to the other and to try and understand each other’s perspective.
On the day of the mediation I spoke briefly with Senior and Junior alone, and explained to them that I wanted one to tell their story first (Junior) and I wanted Senior to listen intently and then that I wanted Senior to carefully and fully summarise what Junior had said. Then I wanted them to reverse the process with Junior listening carefully to Senior and then summarising what Senior had said. I explained to them that I wasn’t asking them to agree with each other-simply to summarise what their opponent in conflict was saying. This is not an easy thing for anyone to do-you are having to put into your own words, your opponent’s story. To be able to do so accurately, you really have to listen carefully.
I was doing this to take the heat out of the conflictual situation, by making both people slow down. But I was also trying to get each of them to walk in the other’s shoes and to hear, see and feel how the other was experiencing the conflict and the effect it was having on them. I was trying to inculcate empathy and trying to help each of them see the conflict from the other’s perspective.
Both Senior and Junior asked if they could take written notes-we were off! I had worried that they would say no, or refuse-but when I explained the process and the why, they agreed. It is the mediator’s process, but parties have to agree to the mechanisms, their consent is needed and important, and if they agree, then you begin with buy-in.
Another Hurdle to Jump
Junior, whose conflict style was ‘Avoiding’, made it clear that they really didn’t want to go into detail-but Senior did. I explained to Junior that they could talk about what they wanted to-but that applied to Senior too- they couldn’t be constrained from approaching subject matter in the way that they wanted to. Junior consented.
That opening exchange worked-there were no apologies-but it really set the tone for the rest of the meeting, and while there was upset and heat (breakouts were taken at appropriate moments when the kitchen got too hot)-parties got through this. Both took notes, and both accurately summarised what the other had said. Each confirmed the accuracy of the other’s recounting. They had been listening to each other.
Before we moved on to free exchange-which took place at length-I asked each, after their opening exchange, if they could each tell me what they thought were the good qualities of the other. Lo and behold Senior thought that Junior was thoughtful and came up with creative solutions to problems. Junior thought Senior was dynamic, a good organiser, a good director, and that they were liked and admired by other members of staff. There were things they didn’t like about each other, but I find it helps if parties see where there is some mutual appreciation, that is common ground, which is a good place to start from!
It was a long and difficult day-neither wanted to say they’d got it wrong or to apologise for their actions. There was some recognition of each other’s perspective-but there was also impasse.
In a private breakout session, Senior made it clear to me that they didn’t want to drop performance management in order to get Junior to drop grievance and disability discrimination, because they felt that they didn’t merit a grievance centred on disability discrimination. Junior was in fact the one who had suggested performance management. It wasn’t Senior’s fault that they were where they were. I responded to that by saying to Senior-if you want someone to come to where you are, you need to build a bridge for them, to help them get there- can you do this? I didn’t know what Senior would do or say- though Senior was clearly ruminating.
We went back into another joint meeting and breakthrough occurred! Senior said ‘I’m not going to pursue performance management here-I still think there are issues, especially to do with your failure to report in writing-but I would rather tackle these with you together in conversation and I want to support you to see if we can resolve these difficulties. I am making this decision unilaterally. It’s up to you what you do about the grievance. My decision is not conditional’.
After that, everything fell into place quickly. Junior said, ‘I didn’t know what to do-my back was to the wall. I was frightened about losing my job’. Junior also said, ‘you’re right about my failure to report in writing-it’s something I need to do and I will. I don’t want to go on with the grievance-but I don’t want it held over me-can we start again with a blank sheet?’.
Hard bitten bears don’t generally apologise to each other-but this was as near as dammit an apology for failure on both parts.
I’m pleased to say the matter resolved on the above basis. This was a tremendous outcome – the organisation kept the talents of both Senior and Junior; there was recognition that they would need to work together more and better and that this would require direct conversation which hadn’t been taking place for over a year. As importantly, fall out damage to the reputation of the organisation, inevitable as public Tribunals are reported in the press – was avoided.
Posted by Paul Kirkwood, Law Society of Scotland Specialist Accredited Commercial Mediator and director of www.MNCRS.co.uk – Mediation, Negotiation and Conflict Resolution Services.