Focus on Protection: The Fourth Measure of Justice in a Conflict Management System

Often I have heard from employees and even managers that the conflict management system looks fine on paper, but they do not feel comfortable using it. "It will hurt my career. It will make me look like a whiner. It will cast me in the role of trouble maker. If I get involved in this, I will be fired." These are common responses by employees and line managers in crisis who need access to an effective conflict management system.

Conflict will go unaddressed unless employees are protected by the system. The Protection Focus rates the degree to which actors feel safe to raise issues. A workplace participant who fears retaliation will avoid participation in conflict resolution. Similar to the Applicability Focus, there must be evidence of protection from retaliation for open dialogue to occur. This is especially true for performance-paid employees. Since the employer is in charge of performance evaluation, assignment of work and promotions, employees are vulnerable to subtle reprisals from management actors. The fairness system must discourage retaliation from other workplace participants, especially those in positions of authority.

One way to discourage reprisals is to concentrate on interest-based options. This has the advantage of engaging the participants and sharing the victory. The less litigious the fairness system is, the less likely it will give rise to retaliation. Participants need sufficient buy-in to trust the other actors and the system’s results.

Another way the system can minimize retaliation is by protecting participant confidentiality. In many cases this may be difficult. Nevertheless, a high score on the Protection Focus will depend upon the care to which the system guards the confidentiality of its participants.

Finally, the system should discourage parties from taking the law into their own hands. The conflict management system must impose consequences on those who retaliate, and reward those who cooperate by meeting their interests.

Focus on Independence - The Third Justice Measure

Who is in charge of your conflict management system? Who makes decisions about changes to the system? And who is that person or those persons responsible to? These are all questions related to the independence of the conflict management system.

The Independence Focus measures how secure the fairness system is from employer arbitrariness and manipulation. Without independence, the system is incapable of meeting most of the other Focuses. While the system need not be totally separate, it must be independent enough to be unbiased. For example, the system must have the power to get the facts of the case. It cannot operate effectively without access to all the information necessary to make a fair decision.

A fairness system will score high on the Independence Focus when it can operate free of external pressures. This is not meant to challenge the employer’s right and responsibility to manage and make decisions in the normal course of business. Decision-making responsibility for business rests with the employer. This Focus measures how well the system is protected from the misuses of that responsibility.

Focus on Applicability: Another of 8 Justice Measures

Of all the measures of fairness in conflict management systems, I have found that applicability is the most difficult to achieve. Often I will hear managers or human resources people say, "You cannot submit this decision to the conflict management system - this is a management function. This is management decision-making and it cannot be second-guessed. To do otherwise would undermine the whole employer-employee relationship." Generally in response to this declaration I ask managers whether they ever make decisions that are unreasonable. When they invariably say no, then I ask, "well what do you have to worry about?" After a bit of grumbling I usually find that the manager in question will agree that it is a good idea to test the fairness of some management actions.

The Applicability Focus measures the extent to which all actions are subject to the fairness system. A fairness system that excludes certain actions leaves itself open to abuse. For example, a system that covers discipline but does not allow an employee to challenge their performance review provides an avenue for a manager to exact revenge upon an employee. This infringement would also be reflected in the Protection Focus (see as will be explained later) which emphasizes the need to consider this systemic weakness. A properly functioning fairness system need not submit all employer actions to review by a third party. But it should ensure that there is a forum to discuss those actions. Moreover this Focus should cover co-employee disputes. A high score on the Applicability Focus requires conflict management system that resolves conflict regardless of the issues or the positions of the parties involved.

And this also has a significant impact on how much engagement there will be in the conflict management system. If critical actions and decisions are exempted from the conflict management system, then the system will lack credibility in the eyes of workplace participants.

Therefore, a conflict management system can only be considered just and fair if it includes all critical decisions that can be made about workplace participants regardless of where those decisions come from.

Focus on Access: One of the 8 measures of Justice

Earlier I promised that I would thoroughly explain each of the 25 measures of workplace fairness. According to my theory, fairness can be both measured and achieved in conflict management systems. In our last installment I generally discussed the notion of Justice as one of the four pillars of Fairness. Now I will focus in on the first of 8 components of Justice: Access.

In Workplaces That Work, I state rather boldly that for a fairness system to properly work, access for all workplace participants must be a right not a privilege. Where membership is tentatively bestowed and withdrawn at the discretion of a superior, an participants are defenseless. Limiting Access to the conflict management system creates unequal classes of workplace participants. This in turn leads to discredit the whole system as cynicism overwhelms to purpose having the system in the first place.

While it is relatively easy to understand the need for unlimited access to a conflict management system, achieving complete access can be very challenging. In gauging the Access Focus, then, it is important to consider what steps are taken to make the system accessible to as many workplace participants as possible. This will be a challenge for many workplaces. There is a temptation to make distinctions between workplace actors. For example, a conflict management system may include the engineers and other professionals but exclude management actors. Without access to the fairness system management actors would have no place to go to resolve their conflicts.

There may in fact be a different fairness system for different workplace participants. This is acceptable so long as each fairness system secures access to the intended participants and all participants are covered by one system or another. This will be problematic, however, where one fairness system is demonstrably more provident than the other. This will engender cynicism about workplace fairness as some participants feel they are treated as second-class.Participants generally fear that raising an issue will harm their careers, and might even engender reprisals. Therefore access to the system should have multiple entry points with more confidential and interest-based options where desired. This is important when considering the mind-set of people in crisis. They need access to a system that will help them manage the conflict in their own way.

In the next installment, I will discuss the Applicability focus of Justice as it relates to the Theory of Workplace Fairness.

The Book Launch Was a Smash Success!

I could not have imagined it any better! The humble book launch I had planned to have at Arbitrator Elaine Newman's bar in Toronto, turned out to be a great party with well over 100 friends, students, lawyers, ADR Professionals and both union and management labour relations professionals attending. People from all around Toronto and even as far away as Ottawa came to the launch. Here is a sampling of the people who attended:

Management Side
Ivars Starasts, Manager of Labour Relations, Ontario Power Generation (OPG)
Lorraine Irvine, Vice President of Compensation and Benefits for OPG
Glen Gurba, retired Directer of Labour Relations (OPG)
Rhae Naphan, Manager of Human Resources, OPG Hyrdroelectric
Jim Twomey, Executive Vice President of OPG Energy Production
Jason Fitzsimmons, Manager of Labour Relations OPG
Matthew Dowdle, Labour Relations Officer OPG
Alex Brat, Director of Labour Relations, New Horizons Systems Solutions
Bruno Iannacito, Employee Relations Consultant, Toronto Transit Commission
Bill Warrel, Executive Director, LAMP

Union Side
Rod Sheppard, Executive Vice President, Society of Energy Professionals SEP
Marlene Khalil, Local Vice President, OPGN, SEP
Joe Sarick, Local Vice President, NHSS, SEP
Peter Tien, Unit Director, NHSS, SEP
Kathy Wilcox, Unit Director, NHSS, SEP
Jay Monterio, Unit Director, NHSS, SEP
Simon Huang, Unit Director, NHSS, SEP
Frank White, Research Officer, SEP
Brian Robinson, Communications Officer, SEP
Cheri Funston, Staff Officer, SEP
Laura Langmaid, Office Staff, SEP
Lynda Crichton, Training Officer, SEP
Chris Dassios, Senior Legal Counsel, Power Workers Union (PWU)
Garil Lampman, Shop Steward, PWU
David Loney, Staff Representative, Ontario Public Service Employees Union (OPSEU)

Neutrals
Stephen Raymond, Mediator-Arbitrator, Vice-Chair Grievance Settlement Board
Laura Trachuk, Mediator-Arbtrator
Jules Bloch, Mediator-Arbitrator
Peter Chauvin, Vice-Chair, Ontario Labour Relations Board
Mundy McGlaughlin, Past Director Diversity, OPG, Workplace Consultant
Sarah Atkinson, Workplace Investigator
Kathleen Martin, Mediator-Arbitrator, OHRC Appeals Tribunal Member
Roger Altan, Workplace Investigator
Paul Emond, Professor of Law, Mediator, Owner of Emond Montgomery Publishers
Gary Furlong, Mediator
Shirley Drayton, Patient Care Manager, Sunnybrook Hospital
Eleanor Shannon, EPS Consultant Services
Karen Coles, Senior Executive Conference Developer, Insight
Elaine Newman, Mediator-Arbitrator
Dr. Bruce Ally, Mediator-Arbitrator
Lisa Tenace, Department of National Defense Ombuds Office
Lynn Bevin, Mediator-Investigator, Workplace Consultant
Dawna Borg, Mediator
Owen Gray, Mediator-Arbitrator
Joyce Young, Mediator

I was most honoured to have Elaine Newman, Gary Furlong, Paul Emond and Rod Sheppard, four very special people, get up and say a few words about me and my book. I was somewhat overwhelmed by their kind encouragements and thoughtful praises. Then I had a few words for the crowd. I asked them to look around to the people in the room - as this best exemplifies what my book is all about. We are all a part of the workplace conflict management team. And when it comes down to it, workplace fairness begins with respecting the roles of those who are trying to protect fairness.

While I was signing books, I received a call from my friend Andrew Muller, President of the Society of Energy Professionals who could not make the launch because he was in Quebec City. Andy wished me well, echoing emails I had recieved from many colleagues who could not make it on the day. Kevin Whitacker, Chair of the Ontario Labour Relations Board was one of those who could not make it but took the time to give me a thumbs up for my accomplishment.

As the party neared its end I had two gratifying conversations. The first was with Elaine Newman who stated that this was the most lively book launch she had ever hosted, and the other was with Joanne Gordon from Canada Law Book who let me know that she was shocked at how many books we sold. She ran out of books after the first hour or so and had to take orders from the late-commers. That never happens at a book launch according to Joanne.

Anyway, this is one of those milestones that I will never forget. My family, friends and colleagues joined me in celebrating the birth of this book and of a theory of workplace fairness that I hope will mature and gain acceptance in the community.

Thank you Elaine, and thank you my friends, family and colleagues for making this a truly joyous ocassion.

Justice: One of the Four Pillars of Workplace Fairness

In my research on the topic of workplace conflict management systems, I have uncovered two general schools of thought: one school I will call the Justice school and the other I call the Efficiency school. The Justice school came along very early in the study of workplace conflict management systems. I think it fair to say that justice was the primary motivation of the grievance-arbitration procedure developed for most unionized workplaces. This school featured prominantely in the post-war Western world as the primary factor behind the development of conflict management systems in the workplace. And for non-union workplaces a similar phenomenon existed through what was called the "due process" movement. Human resources professionals sought to emulate some of the conditions of a unionized workplace in non-union workplaces predominately in order to stem the flow of unionization. The theory behind this move was that lack of justice in the workplaces was a precondition for unionization. Therefore to stop a union drive, the workplace should have a system for resolving conflict that had some of the same characteristics. In the US especially this culminated in non-union grievance procedures throughout many workplaces.

The Efficiency school started much later with the introduction "interest-based" negotiations. From IBN came the idea that conflict management structures should contain features that were less aimed at "rights" and more aimed at "interests". The Efficiency school, of course, would not recommend the exclusive use of interest-based techniques for resolving conflict, but sought to integrate interest, rights and power based options. Today, the Justice school and Efficiency school are still alive and well. In every unionized workplace in the Western World one can see examples of Justice style conflict management procedures. And in both union and non-union workplaces there are increasing examples of what is called the Integrated Conflict Management Systems ICMS approach to systems design.

The purpose of this article is to introduce the idea of Justice as one of the four cornerstones of a healthy workplace conflict management system. The other three cornerstones are Efficiency, Engagement and Resources. Subsequent articles will deal with them.

So what is Justice and how is it measured?

The Justice Quotient measures all those concepts that one would find in a normal "rights" based forum for dealing with conflict. When you think of how a court operates, it is primarily concerned with Justice. Extraordinary measures are taken to ensure that participants have the opportunity to present their best case, to hear all the case against them and to have proper advocacy to ensure they know their rights. For the purposes of conflict management systems I have separated Justice into seven components or focuses:

Access
Applicability
Independence
Protection
Support
Procedural Fairness
Enforcement
Legal

Although I will be describing each of these focuses in greater detail in subsequent articles, for the purpose of understanding the Justice Quotient, I will say that each of these measures are critically important. A Just system:

ensures unlimited access to it;
covers all the actions of employers and employees;
is it is independant from manipulation;
protects and supports its participants;
ensures the right to be heard and to hear the case;
results in enforcable and enforced solutions;
and ensures the legal rights of participants are protected.

Without these components any workplace conflict management system would be considered weak in the Justice Quotient.

When trying to determine whether a workplace conflict management system has a strong Justice Quotient, it is important to ask questions related to the above criteria.

In the next seven installments, I will be describing in great detail each of these components.

The 25 Measures of Workplace Fairness

Have you ever dreaded going to work? Have you ever felt like you were walking into the lion's den as soon as you open the door to your workplace? Have you ever desired to shut yourself away from the rest of the workplace because you feel oppressed by the environment? These are sign of a workplace that does not work. These are signs that the system of conflict management is unfair. In such workplaces conflict never seems to get resolved and the smallest issues seem to grow into insurmountable obstacles. More time is spent embroiled in conflict than in getting any work done. And often the quality of work suffers because people refuse to share information for fear it will be used against them in some way. In such workplaces people with options take them. Those who have job prospects elsewhere move on. And those left behind become increasingly bitter.

So you know that the workplace is not working. What you probably dont know is why. You have theories of course. But these theories likely revolve around individuals. This is because individual actions lie on the surface of conflict. But underneath that surface is falty structure that breeds conflict among individuals.

Over the next couple of months, I will be introducing a theory about the elements of fairness in workplace conflict management systems. I will thoroughly explain each of the 25 measures of workplace fairness. This theory can be found in the book Workplaces That Work (see www.workplacesthatwork.ca).

In this article I will introduce the 25 measures with a thorough review of each measure in follow-up articles.

MEASURES OF A FAIR CONFLICT MANAGEMENT SYSTEM
I have constructed a fairness measurement theory that includes 21 focuses divided up into four quotients. Every workplace conflict management system can be looked at through the focuses listed below (in lower case). So for example, the elements of Justice in the workplace include Access, Applicability, Independence, Protection, Support, Procedural Fairness, and Legal. By analyzing the conflict management system through each of these focuses we come to understand how Just the system is. Likewise, by looking at how well the system manages interest, alternatives, cost, flexibility, education, timeliness, and encourages self-help options, we can determine how Efficient the system is. We can measure Engagement by looking at participant buy-in and participant involvement. Finally, we can measure how well Resourced the system is by looking at the human, facilities, and financial resources devoted to the system, and by analyzing the system's focus on continuous improvement.
Stay tuned for a thorough explanation of each Quotient and each Focus.

JUSTICE
Access
Applicability
Independence
Protection
Support
Procedures
Enforcement
Legal

EFFICIENCY
Interests
Alternatives
Self-Help
Cost
Flexibility
Education
Timeliness

ENGAGEMENT
Buy-In
Involvement

RESOURCE
Human
Facilities
Financial
Improvement

The Wondrous Community of ADR Bloggers

I am truly overwhelmed by the warm welcome I have recieved from the ADR and Legal blogging community. I first stumbled on to the idea of blogging when I was surfing the net in search for people and organizations that might be interested in my book. Those sites with blogs were the first to respond. The Law Prof Blog put up an announcement for my book within 30 minutes of my email. And other blogs immediately picked up the announcement.

Well that led me to start researching blogs and I found a great ADR blog directly run by Diane Levin. Then I noticed that there were two bloggers in toronto in my field in Toronto. I contacted both of them, Stephen Raymond - a first rate mediator-arbitrator and Michael Fitzgibbon a well known management side lawyer from Borden, Ladner, Gervais. Both of these colleagues and now fellow bloggers were enthusiastic in their support.

But the icing on the cake came from a well respected mediator lawyer in Beverely Hills, Victoria Pynchon at www.mediatenow.blogspot.com. Vickie even took a couple of calls from me and helped set up the blog. All of these fellow bloggers have shown the kind of support that reaffirms one's faith in human beings.

As I pondered my stellar luck this morning in hooking up with such a warm community, it occured to me that there is a parallel to earlier, perhaps simpler times. It takes me back to stories of my youth in Saskatchewan where people from all around the community would take time off from working on their farms to help the new family build a home on the prairie landscape. Indeed this feels like the new frontier. And on the frontier, people pitch together to ensure that it becomes a better place for them and those who come after them.

To my new found friends in the blogging community, my thanks from a fellow pioneer on this great new frontier.

Why Should We Care About Workplace Fairness?

Over the many years of my study of the subject of workplace fairness, I came to reject the often advanced notion that fairness is purely subjective and a matter of individual perspective. I believe fairness can be described using more objective "reasonableness" standards.

My study of workplace fairness began may years ago in law school when I was asked to prepare a paper to submit to the Saskatchewan Government Labour Law Reform Committee. In this paper I advanced the idea that there should be legally entrenched standards for "due process" in the workplace. These standards, I argued, had to exist regardless of whether or not there was a union in the workplace.


For many years after this I studied workplace fairness from the vantage point of a practitioner in workplace conflict management in the energy sector in Ontario. Taking the experience I gained and applying it to earlier hypotheses, I began research on the idea of a "right" to workplace fairness. This culminated in a conference paper called "The Social Right to Workplace Fairness" that I presented to both Osgoode Hall Law School and the Carleton Conference on Conflict Resolution in 2000.

From there as the years went by, my ideas concerning "fairness" and "conflict management" began to merge into a theory that conflict management systems could be measureed for fairness excellence and that such excellence could be achieved in any system. I developed a diagnostic tool that measured fairness in conflict management systems.

Workplace Fairness is defined as the harmony of Justice, Efficiency, Engagement and Resource Sufficiency in Workplace Conflict Management Systems. Each of these four Fairness Quotients: Justice, Efficiency, Engagement, and Resources consist of a number of elements or focuses as listed in the table below. These are the constituent parts of workplace fairness.

I have come to the conclusion that Workplace Fairness is a commodity most sought after by employees, managers and employers. Where a workplace meets the standards of fairness listed above, it will be healthier, happier and more productive.

But this is only part of the reason why we should care about workplace fairness. Underlying the quest for harmony and increased productivity is really a philosophy about how we choose to live our lives. As human beings most of us spend nearly half of our waking adult lives in the workplace. Our work defines us to a great extent.

We are social beings that are partly the product of our own socialization. Workplace structures that are essentially unfair lead to a general sense of unfairness in the workplace. By accepting unfairness in the workplace we condition ourselves and our society to accept unfairness in other aspects of our lives and the lives of others on the planet we share. This may account in some part for our acceptance of unfairness in the world around us.

Therefore, there is a greater need to seek fairness in every aspect of our lives.

It is for this reason, that I believe we must care about workplace fairness.

Come To The Book Launch

There will be a book launch for Workplaces That Work: A Guide to Conflict Management in Union and Non-Union Environmants (Canada Law Book, 2006) by Blaine Donais on October 11, 2006 from 5:30 to 7:30 p.m. at the Imperial Pub, Second Floor on Dundas, 1 Block East of Yonge on the North side. See you there!