Part 2 – For Disputants
Case Study
Jon sat stoically in the mediation room. On his side was his lawyer and a younger associate. Across the table, on the company’s side, there were 4 lawyers next to the HR Director, Maynard, and the Audit Director, Cedric. This was the first time he had seen the lawyers who had been writing many of the nasty threatening letters to him. It was probably only the fourth time he had seen Cedric in person.
The mediation commenced with a brief but intense exchange of opening statements. Jon’s lawyer outlined how Jon, the project lead for an IT implementation project for a major client, had been constructively dismissed shortly after he had filed a complaint with HR against his supervisor for discriminatory practices. He had been emotionally harassed, sidelined, and had his job scope reduced without any documented justification. He felt the company owed him an explanation and payment of 2 months’ notice.
The company’s lawyers highlighted how Jon’s performance had dipped since he was assigned to a different team at his own request. There were many complaints from clients, team members, and supervisors. His demotion was a last resort after he refused to comply with the performance improvement plan. They wanted him to confirm that he was no longer holding onto any secret company information because they knew that he was now employed in a rival firm.
As the mediator listened, it became clear that expectations had been greatly mismatched. This was in part because of cultural differences. The company had been bought over by a Korean conglomerate and Jon had been asked to submit reports on new templates to his new Korean supervisor based in Busan. Because this change came at the height of the project implementation, Jon felt it was more expedient to continue using the old report templates. He was also not used to the bureaucratic reporting lines which were imposed by staff. Over what Jon thought was an informal post-work drink-and-gripe session, he spoke with Maynard about his difficulties in adapting to his new Korean boss and the Korean deputy in his project team that was clearly placed there to “spy on him”. He did not think that Maynard would record his grievances and submit them to Korea HQ. He had not intended to deliberately bypass his own supervisor or to sabotage his deputy.
After several rounds of private discussions with the mediator, parties came to a mutual agreement in the afternoon for claims to be dropped and for both sides to refrain from making derogatory remarks of the other.
The case study above is an example of how workplaces in cosmopolitan societies can see more disputes. The modern workplace is an intense melting pot of differences. It is common, even for small companies to have staff from 3 or more different nationalities, races, and religions. The usual age differences also become unusually grave gulf-exacerbators as younger generations adjust more quickly to new digital tools.
In anticipation of a rise in employment related litigation, the Singapore Parliament decided in 2023 to introduce new workplace legislation.[1] These are expected to come into force some time in 2024 and would mandate mediations for workplace disputes, particularly those involving allegations of discrimination.
One key goal of the legislation is to drive home the point that openness and diversity should not automatically lead to more disputes. Multi-national companies deliberately set open hiring policies. They see diversity as a core strategy to foster vibrance and generate new ideas. What companies need is a framework by which differences can be celebrated. Different talents and interests prevent group-think and enable greater agility and adaptability when operating environments change.
That said, that the differences sometimes lead to disagreement is inevitable. The other trite truth is that disagreements in a diverse workplace can be frustrating. To enable amicable resolution, what employers and employees need to first recognize is that resolving them does not need fault to be attributed to anyone in particular. Fault-finding attitudes to dispute resolution lead to unhealthy habits such as concealment, blaming, and sheer avoidance of initiative- and responsibility taking. Root problems are never resolved and staff will avoid taking on high risk high return projects.
When internal mechanisms do not seem to work, speaking to an external party can lend invaluable insights and undo seeming deadlocks. The mediator’s prerogative is to assist everyone to find an effective solution to the problem at hand. While employment mediators do work with counsellors and coaches in some instances, the nature of the work and our goal is fundamentally different. The mediation itself can take only half a day or a full day if there are more parties involved and the issues are complex. Having the courage and wisdom to seek help early can be that pivotal difference between a happier and productive time at work, or that other lost year of missed opportunities and depressing under-performance.
For those who have a workplace dispute and are preparing to attend a mediation, whether as an employee, employer, or advocate for one of these, 3 tips for the mediation to be fruitful are:
Tip #1: Obtain a reliable assessment of possible legal remedies
In mediation, mediators will often ask parties if they have been advised on the cost of carrying on their dispute at the employment tribunal, in arbitration, and/or in court, and the likely outcome if they should proceed. Because of the need for mediators to remain neutral, they cannot give specific advice on the strength of any side’s case, nor can they give anything better than arbitrary estimates of what the cost of trial would be. It is also beyond their mandate to indicate to parties how to make their case stronger in order to obtain better outcomes in court. Matters like these need to be ascertained with your own lawyers beforehand. This clarity about what would happen if there was no settlement enables you to know what you are walking towards if you choose not to accept the proposal of the other side.
Tip #2: Consider what non-legal outcome the other side will want
One of the greatest benefits of mediation is the ability for parties to resolve disputes with “extra-legal” elements. Unlike judges, parties in workplace mediations can factor in items like apologies, referrals, and expansion of networks. While defining what we want for ourselves is important, having a realistic sense of what the other side is seeking helps refine the persuasion strategy and make the mediation more efficient. Using the mediation to push only for one’s own objectives and not being ready to respond effectively to the requests of the other side can lead to frustration and impede the mediator from helping you gain closure.
Tip #3: Choose your mediator
Professional mediators approach the dispute differently depending on their personal assessment of the parties involved and of the issues in dispute. Good mediators are known to be able to draw on their experience in particular technical domains and help achieve breakthroughs to seemingly intractable disputes. Finding the right mediator means you will have your side of the events properly understood and transmitted to the other party. It also gives greater assurance that the mediated outcome has taken into account operational realities and will be feasible.
In choosing your mediator, consider what you think are the core areas of misunderstanding. A mediator familiar with employment law may help lend insights but may also be predisposed to framing the issues legalistically. Mediators who were former HR professionals may be more familiar with how employment and workplace policies can be implemented, but they may also have expertise gaps if the dispute required some insights on legal matters. In some value-based disputes, there may also be a need to choose mediators who are from similar cultural backgrounds as the disputants so they can better connect with the disputants and bridge the differences.
The Ministry of Manpower, labour unions, and mediation centres will have staff who are trained to provide assistance and advise to set up a mediation and facilitate amicable resolution. Most of this assistance is free and confidential making it wise to tap on them early rather than let problems fester.
References:
[1] https://www.mom.gov.sg/newsroom/press-releases/2023/0804-government-accepts-tripartite-committee-final-recommendations-for-wfl
Image via pexels.com by Mikhail Nikov
