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Introduction to: Employee Dispute Resolution Programs Copyright © 2011 CoralBridge Partners THE STATISTICS • ON AVERAGE, EVERY EMPLOYEE SPENDS OVER TWO HOURS/WEEK, AND 10% OF EMPLOYEES SPEND SIX HOURS/WEEK DEALING WITH SOME TYPE OF CONFLICT • THE NUMBER OF EMPLOYEES SEEKING HELP FOR WORK‐RELATED CONFLICT CONTINUES TO RISE AND COSTS BUSINESSES BILLIONS OF DOLLARS IN LOST PRODUCTIVITY 2 THE STATISTICS • Unresolved conflict is a decisive factor in 50% of voluntary employee turnover and 90% of involuntary turnover, costing 70‐150% of annual salary for each departing employee 3 THE STATISTICS • AN EMPLOYMENT COMPLAINT THAT ESCALATES INTO A LAWSUIT CAN EASILY COST $100,000, TAKE 3‐5 YEARS TO RESOLVE, AND SERVE AS A MAJOR DISTRACTION 4 Sample Employment Class Actions Company Settlement Allegation UBS $30 million Gender discrimination Wal-Mart $173 million Wage and hour Red Lobster $9.5 million Wage and hour Morgan Stanley $53 million Gender discrimination Ralph’s Grocery $30 million Sexual harassment Rent-A-Center $47 million Gender discrimination AMEX $31 million Gender/age discrimination Coca-Cola $192.5 million Race discrimination Texaco $176 million Race discrimination Home Depot $65 million Gender discrimination Publix $81.5 million Gender discrimination EMPLOYMENT-RELATED DEVELOPMENTS • Emphasis on being proactive/dispute avoidance • Increased litigation and litigation expenses/costlier settlements • Protracted conflict • Increased interest in utilizing HR programs to improve PR • Recent court decisions affirming continued support for ADR • Increasingly diverse workforce • Globalization • EEOC mediation “refer-back” program and other programs • Six Sigma and other quality-initiatives • More organizations seeking alternative solutions and new definitions of “success” and “win” in HR and legal environment 6 1990s BiRth of “conflict Management system Design” • Alternative Disputes Movement into Corporations • Approach to Conflict: 1. Systematic 2. Proactive/Preventitive 3. Collaborative Effort of Entire Organization 4. Interest Based instead of Rights Based 7 INTEGRATED CONFLICT MANAGEMENT SYSTEMS • Employee Dispute Resolution Programs • Consumer Conflict Management Systems • Early Warning Systems • Early Case Assessment Programs • After Action Review Programs 8 A Progressive Approach to Conflict Management •Prevent and eliminate all litigation costs and fall-out. •Create a more productive workplace: Managers and Leaders focus on driving value added services Teams operate effectively and efficiently to deliver services Individuals support customer needs Increased revenues and profits to sustain a competitive advantage 9 Interest-based Conflict Management Systems Design (Costantino and Merchant, 1996) • Merge organizational development, dispute systems design, and the interest-based concepts of ADR to create effective conflict management systems • Conflict management systems v. dispute resolution programs • A more systemic approach with a focus on stakeholders • “If you build it, they may or may not use it. If they build it, they will use it, refine it, tell their friends about it, and make it their own.” What is an Employment Dispute Resolution Program? A systematic approach within an organization to provide employees and the organization with a variety of processes outside the existing, formal judicial system to resolve employment related disputes. Such programs lend consistency and manageability to the handling of workplace issues while saving time, money and other valuable resources. 11 Employment ADR Programs vs. Litigation ADR Litigation Avg. Cycle Time to Resolve 3 months - 1 year 1 - 3 years Avg. Outside Cost to Resolve $2,000 - 30,000 $35,000 - 250,000 Confidentiality Private Public Trier of Fact (w/arbitration) Experienced Neutral Jury Degree of Control High Low Avg. Settlement Cost $5,000 - 25,000 $15,000 - 195,000 Participant Satisfaction Level Medium/High Low/Medium Class Action Experience None to Low None to High Charge and Lawsuit Volume Low Low to High Source: Compilation of Client and Public Information (1993 - 2012) 12 Reasons to Design and Implement an Employee Dispute Resolution Program: • Creates a “Litigation Prevention System” to eliminate large settlements, jury awards, and class-actions. • Saves time and money by resolving disputes quickly, fairly and economically. • Leverages the strengths of any current process by creating more options for the employee to resolve disputes and opportunities for the company to assess the issues. • Produces more cooperative and creative solutions, preserving the employer-employee relationship. • Prevents “bad press” for the company because the process is confidential. 13 Program Benefits (cont.) • Control process/minimize uncertainty and maximize uniformity • Decreased turnover • Improved company decision making 14 What organizations have programs? 15 Statistics Support Earlier Resolution and ADR Companies utilizing a collaborative approach to dispute resolution and mediation on a systematic basis report tremendous time and cost savings, usually millions of dollars in settlement costs alone – GE has reported upwards of $15 million per year in cost avoidance through its Early Dispute Resolution System. – Toro’s Early Intervention Program saved the company $50 million in its first six years. – Georgia-Pacific saves $3.5 million in legal fees and related costs each year. – Motorola reported a 75% reduction per year over six years in outside litigation expenses by using a systematic approach to conflict management – NCR reported a reduction in outside litigation expenses of 50% and a drop in its number of pending lawsuits from 263 to 28 over a 10 year period, following the systematic use of ADR 16 Employment Dispute Resolution Programs: An Overview 17 Goals of a Program To Prevent or Resolve Disputes at 1. the earliest possible time, 2. the lowest possible cost, and 3. with the most informal interest-based process as possible. 18 Primary Dispute Resolution Methods • Rights-based methods are grounded in fixed rules or principles (litigation, binding arbitration) • Interest-based methods allow parties to identify their concerns, needs, and desires as a starting point in addressing the issues in dispute (mediation, facilitation) Dispute Resolution Continuum Rights Based RIGHTS BASED Interests Based& INTERESTS Adjudicative Conciliatory Litigation Mediation Arbitration Conciliation Negotiation • most formal • most adversarial • least party control • least formal • least adversarial • most party control Evaluative Summary Jury Trial Mini Trial Early Neutral Evaluation • formal & adversarial • parties retain control 20 Distressed System v. Effective System Rights r Rights Interests Interests Effective System Distressed System 21 Sample Employment Dispute Resolution Mechanisms ... • Open Door • Mediation • Negotiation • Mini-Trial • Facilitation • Case Evaluation • Ombuds • Arbitration • Fact-finding • Private Judging • Peer Review 22 Open Door Policy Supervisors, Managers and CEO all leave their office door “open” in order to encourage openness and transparency with the employees. Employees are encouraged to stop by whenever they feel the need to meet and ask questions, discuss suggestions and address problems or concerns with management. 23 Negotiation A method of exchanging interests and proposals through direct communication. •Positional-based negotiation: driven by the assessment of desired outcomes and the iterative exchange of those outcomes towards a compromise. •Interest-based negotiation: driven by the parties’ ultimate commercial objectives and the exchange of proposals for obtaining those objectives in the context of the other parties’ interests. 24 Facilitation Some programs include a “Facilitation Office”. The Office oversees administration of the program and can be the touch point to guide employees through the various processes. However, the “Facilitator” can also help facilitate discussions between management and the employee. Sometimes discussing the problem with the “Facilitator” is enough. 25 Ombuds An organizational ombudsman (1) works with individuals and groups in an organization to explore and assist them in determining options to help resolve conflicts, problematic issues or concerns, and (2) brings systemic concerns to the attention of the organization for resolution. Operates: 1. confidentiality 2.maintains a neutral/impartial position 3.works at an informal level of the organizational system, and 4.independent of formal organizational structures. 26 Fact Finding A neutral fact finder conducts an independent investigation into the cause of the disagreement. The fact finder will interview both sides, gather additional information, and then present findings and possible solutions to the parties. The findings and recommendations are not binding but are incorporated into the negotiations between the parties and their counsel. The fact finder usually does not directly participate in the negotiation process. 27 Peer Review Employee takes a dispute to a group or panel of fellow employees and managers for a decision. The decision is not binding on the employee, and s/he would be able to seek relief in traditional forums for dispute resolution if dissatisfied with the decision. Typically, the panel consists of employees and managers who volunteer for this duty and who are trained in listening, questioning, and problem-solving skills as well as the specific policies and guidelines of the panel. 28 Mediation Mediation is facilitated negotiation, whose object
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