Anyone who has been through a full-on employment dispute will understand just how distressing and wasteful the experience can be.
These disputes stand apart for a number of reasons not least the degree of interaction between the parties, sometimes over many years with thousands of potentially relevant emails and Whatsapp messages to trawl through, not to mention legal costs, damage to reputation and staff turnover. But the biggest tragedy of all is opportunity cost…The legal bill may pale into insignificance compared to the true commercial assessment of all that waste of an organisation’s time and resources arguing about the past instead of getting on with the goals in hand…Which brings me onto my favourite book on the subject – Conflicts and a Better Way to Resolve Them (by Edward de Bono).
A client gave me a copy over 15 years ago and it totally transformed my way of thinking. Back in the day, I had at least 30-40 tribunal claims in a typical year. Now I’ve just the one in August and I’m hoping to dismantle that one.
So, the facts surely speak for themselves. Applying guidance from this book can really make disputes disappear.
You may doubt why a lawyer would be writing about not suing given the fees involved in a typical dispute (say £10,000 a go) but one of the exciting ideas in this book is the notion of a system which rewards people for not fighting one another… I’ve taken this on board and jigged things around and all I’ll say on that is it is very doable!
Edward de Bono (EdB) is the originator of the concept of ‘lateral thinking.’
I found out more about him when acting for an employer many years ago in what looked like a very messy dispute. I’d just bought a motorbike so on a whim, instead of bashing off some legalistic written threat, I decided to pop over to the factory and found myself face-to-face with an employee who was the victim of what appeared to be sexual harassment on the shop floor. It all looked so bad on CCTV video but in real life things were not as they seemed. With HR present I learned firsthand about what had happened and what the employee really wanted: she loved her job, didn’t want disciplinary action (the man concerned was her former partner) and all she just him to accept the relationship was over. Another thing was troubling her though: the atmosphere more generally, especially discriminatory banter. She wanted that to stop.
With a clear goal in mind and-encouragingly with the employee part of the solution- we dealt with the dispute via a mediation session and then we held a short training session in which we successfully flushed out what was going on, drawing a line under past behaviours…setting new standards. Both I and the employee were surprised (shocked in fact) when many of the men pointed out to others their conduct was ‘out of order,’ basically doing my job for me!
I didn’t know at the time, but I was working with a very powerful tool. It’s called Common Interest (a big theme in the book), deploying the Design model for conflict resolution instead of a horrible old adversarial role with polarised enemies digging in, lobbing allegations across the divide.
Anyway, that was the last I heard from that client, so I assume it all went well.
Of course, where there’s a genuine aggressor, the chances of using this Design Approach are slim. But, in most cases, the maxim Fairness is a Weapon is true at tribunal. A Claimant who has been offered fair solutions before lodging a claim can find they’ve overreached themselves with credibility slipping away towards the employer.
I have just re-read this excellent book. It’s written in a very accessible style with simple guiding principles, so the plan is to share the insight with you each month when I’ll be circulating a summary of a chapter in a short update with some practical guidance based on my personal experience as a litigator.
I’ll do my best to reduce the chapter to a good lunchtime read but with something tangible for you...what to do and how to respond to conflict.
Here are the 6 updates to look out for…
July- Understanding Conflict- I’ll be looking at why we idealise conflict; how entrenched perspectives can drive us into fighting mode… how understanding another person’s perception is essential to managing conflict.
August - The Traditional Adversarial Approach vs Design- I’ll be sharing EdB’s design-based approach to resolving conflict...shining a light on how the adversarial approach tends to lead to stifling polarization and (expensive) ‘hot air.’ I’ll be sharing some practical ideas on how disputes can be dismantled promptly in ways which create new opportunities (not compensation).
September- The Six Thinking Hats Method: Central to EdB’s approach is the ‘Hats’ method. Each "hat" represents a different perspective or mode of thinking, such as creativity (green hat), facts and information (white hat), emotions and intuition (red hat), critical judgment (black hat), optimism and positive thinking (yellow hat), and neutral facilitation (blue hat). Again, I’ll give examples of how a different frame of mind has led to interesting results in cases I’ve dealt with.
October- Reframing Perspectives: I’ll be looking at the importance of reframing perspectives to break free from rigid thinking and entrenched positions, passing on tips on how to encourage a "what if" mindset- exploring alternative scenarios and possibilities to find common ground and unlock creative solutions.
November- Empathy and Communication: Anyone who’s received a typical lawyer’s letter will appreciate just how unhelpful that can be to the cause of reaching an agreement, with so much yet to understand, ramming home one side’s perspective with demands for a result. It’s really a dreadful way to start the process of conflict resolution. Effective communication and empathy are pivotal in resolving conflicts. A great example of this is simply taking the time to check on the other person’s mood before broaching the subject of settlement. Someone who has just experienced a stressful event outside of work for example, or who is still seething about an event at work, is unlikely to be in a receptive mood for compromise.
December - Win-Win Solutions: The best part of this book to me is the concept of Common Interest: designed outcomes satisfying everyone's aspirations, making people better off and happier in the longer term without ‘winners’ and ‘losers.’
Anyway, I hope you find these updates helpful.
PS: I’ve updated my guidance on Settlement Agreements which employees find helpful. You can access it here.
https://www.gtemploymentlawyers.co.uk/settlement-agreements.html
