Where does conflict really start?  In this crazy, busy, noisy world, conflict seems to be such a part of our daily lives that it is sometimes difficult to think of a time and place completely without it.

Although our homes, for example, are supposed to be our safe haven, there are days when we find ourselves relieved to close the door and head to work.  Our relationships, whether close and personal or simply as fellow human beings, at home, work, school, neighborhoods, places of worship, and even the very streets we drive seem to be ones where conflict arrives and thrives.  Even on days when we exit our homes relieved to head to the office, the workplace is rarely a safe haven for very long . . .  have you ever heard  “work would be great if it weren’t for the people”?

Conflict is at an all time high in the workplace, and employees expect their leadership to be adept at dealing with it.  Studies indicate that employees believe if management would resolve conflict sooner and more effectively, it would not escalate from a tiny spark to mighty bonfire as often or as needlessly.

Perhaps many organizations simply assume leadership acquires the conflict management skills needed as they progress in their careers.  On second glance however, does that mean all leadership have the same experience, style and background concerning conflict?  The expectation of leadership having solid conflict resolution skills simply because they have earned a management title is preposterous and unfortunate.

Conflict in the workplace can bring about needed change and innovation.  Unresolved conflict can derail teams, departments and corporations.  There is a significant gap between providing an environment in which employees thrive, and providing an environment that stays in continual conflict chaos.

Failing to provide quality conflict resolution training for management employees is very costly.   What happens when employees are left to deal with conflict on the job?  When management either does not resolve the conflict or does so ineffectively, company talent walks out the door . . . . employees leave and traditionally provide other excuses, such as stress, than citing the actual issue of conflict between coworkers or management.  The employee would rather leave a company than continue to be in an environment they describe as difficult, too stressful, and never going to change.  If exit interviews included a discussion about whether an employee leaving due to the “stress” was stress due to their work responsibilities or stress due to their colleagues, management or customers, would it surprise anyone what their answer would be?  A talented employee can always find another job.  Often when an employee leaves that has been involved in a conflict situation, management sighs with relief.  However, the sigh is barely audible before management realizes that the issue remains and only the players changed.  Companies, teams and departments continually see the same issues over and over again until the conflict is effectively resolved.

Exiting the organization is just one example of how it affects the workplace.  “Presenteeism”, defined as an employee(s) retired while on the job, and may be an even scarier result for business than turnover.  Whether conflict creates an environment the employee decides to escape, or stays and produces only enough to get by, it costs the company significantly.

According to an article from HR Magazine, Drive Turnover Down, July 2012, “The cost to replace and hire new staff is estimated to be 60 percent of an employee’s annual salary, states a 2008 SHRM Foundation report. But total costs of replacement, including training and loss of productivity, can range from 90 percent to 200 percent of an employee’s annual salary, according to a 2006 PricewaterhouseCoopers white paper.”

http://www.shrm.org/publications/hrmagazine/editorialcontent/2012/0712/pages/0712fox.aspx

Companies interested in engaging and retaining talented staff for sustained ability to compete in dynamic, global markets will need to offer quality training for their leadership in conflict management.  Conflict in every area of life affects the employees’ ability to be productive, but especially conflict on the job.  Jack Welch and Bill Gates have said they consider constructive conflict management a strategic priority because of its major effect on productivity, decision  making and retention. 

Conflict management training must be experiential and in-depth for it to be effective.  Offering either no or minimal training in conflict management, such as a blending it into a leadership seminar is similar to deciding you can build a great house because you’ve lived in one all your life, attended a lecture on home construction and walked out with a notebook.

http://www.instituteformediation.com/work-place-dispute-resolution/workplace-conflict-resolution-seminar.html

Tracie  Zimmerman

Mediator and Practice Leader

Workplace Conflict Resolution

National Institute For Mediation

www.instituteformediation.com

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Sherri Evans, Chair
Family Law Section, State Bar of Texas
OPINIONS

11-0732
In re Stephanie Lee
from Harris County and the 14th District Court of Appeals, Houston
For relator: Scott Rothenberg, Houston
For real party in interest: Clinton F. Lawson, San Antonio
MANDAMUS RELIEF GRANTED, opinion by Justice Lehrmann:
The principal issue is whether a mediated settlement must be enforced that provides, in the absence of family violence, a divorced mother periodic possession of her 7-year-old daughter when the mother is married to a registered sex offender. The trial court, considering the father’s testimony that the child slept between her mother and her new husband when he was naked, found the settlement not in the child’s best interest and refused to enforce it. Lee, the mother, argues that the only statutory exception to enforcing a mediated settlement is when family violence can be shown. The court of appeals denied her mandamus relief.
The Supreme Court HOLDS the Family Code’s provision for mediated settlements by its plain language forecloses a trial court’s broad best-interest inquiry with respect to judgment on such properly executed settlements. Allowing courts to conduct such an inquiry in contravention of the unambiguous statutory mandate in Family Code section 153.0071 has consequences that will inevitably harm children. The trial court’s and the appeals court’s decisions ignore clearly expressed legislative intent, undermining the Legislature’s goal of protecting children by eroding parents’ incentive to work collaboratively for their children’s welfare. This frustrates the policies underlying alternative dispute resolution in the custody context, which are firmly grounded in the protection of children. Subsection (e-1), providing a best-interest evaluation in cases involving family violence and that was enacted after subsection (e), which mandates courts must accept mediated settlements, establishes clearly that the Legislature limited the consideration of best interest in cases involving family violence. Allowing a court to decline to enter judgment on a valid mediated settlement on best-interest grounds without family violence findings would impermissibly render the family violence language in subsection (e-1) superfluous.
Opinion
Briefs

Justice Guzman CONCURRING:
Family Code section 153.0071 precludes a broad best-interest inquiry, but does not preclude an endangerment inquiry. The Court fails to address the endangerment inquiry, but the issue is critical because the facts of this case potentially implicate the inquiry—discussion of which provides much-needed guidance to trial courts. Mandamus is appropriate because legally insufficient evidence exists of endangerment to support the trial court’s decisions to set aside the mediated settlement and place the matter on its trial docket. The trial court sustained a hearsay objection to the only statement at the hearing that could have demonstrated the mother might not comply with the settlement (a statement from the father that the mother informed him after signing the settlement that she did not have to inform him of her and her husband’s whereabouts). The record is sparse and does not establish the threshold that must be met before a trial court may disregard legislative policy concerning the deference to which mediated settlements are entitled.
Guzman concurrence

Justice Green DISSENTING,
joined by Chief Justice Jefferson and Justices Hecht and Devine:
Although the Court tries to distinguish between this case—in which the trial court stated on the record that the mediated settlement was not in the best interest of the child—and a case in which modification pursuant to such an agreement could endanger a child, that is a distinction without a difference. Whether the trial court calls its grounds “best interest” or “endangerment,” the bottom line is the same—the trial court, having heard testimony of the parties, refused to adopt the parents’ agreed modification that the court believed would subject the child to exposure to a registered sex offender. The Legislature has made the policy of this state clear:  The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.
Green dissent

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Without giving much thought to the issue of morals and ethics crossing in performing everyday mediations for over twenty years, I now have experience of the crossing and some of the consternation that crossing can cause in the mediator. It all comes down to having to make a choice that may either conflict with your ethics or may conflict with your morals.
When you as a mediator are faced with a possible subpoena or get a call from an attorney asking you to set a time for a deposition regarding a mediation you completed these issues can come to the table and bring you deep levels of thought that you may never have thought possible.
For me this situation came to light when I completed a mediation and a couple of days later one of the parties called me and said they had changed their mind. They wanted more money. I explained that their agreement was executed as a non-revocable agreement and the MSA was their agreement.

The crossing of morals and ethics came later when the party wanting to renegotiate the MSA made untruthful statements regarding what went on in the mediation. They accused the other party of not presenting documents and sharing information that was indeed shared. These items were indeed shared and were indeed actually given to the party for a considerable time to review.

So, we have untruths being presented that supposedly transpired at the mediation table. The party is trying to use these untruths to throw out the agreed to MSA (mediated settlement agreement). So how in this world do I rectify my morals for wanting the truth to come out and my ethical responsibility to maintain confidentiality for the process of mediation. Both parties had executed an agreement to mediate that included a confidentiality agreement not to try to bring me, my staff, or my notes and documents into the legal proceeding. The MSA had all the required language to be binding in the courts. The opposing party was asking for my help to support their position that the MSA was enforceable.

So what was my responsibility in this situation. Did I have a responsibility to uphold the truth that one representation was untruthful and falsehoods were being put before the court in order to get more money or was it my responsibility to uphold the confidentiality of the mediation and uphold the agreement that had been reached at the mediation table. To do the latter it would be an act of silence and letting things stand on the MSA.

Mind you that if there were any act of violence or abuse, or even threat of abuse this dilemma would not even exist for one minute.

This is not the case. I chose to protect the process of mediation and live by the ethics rather than the moral. I did not choose to “take the stand” and clarify the situation as it regarded the MSA. I know and understand this situation has faced many mediators in the past and will continue to face more in the future. Some had a more difficult decision than I did when they are subpoenaed and have to actually deal with a court or a judge telling them that if they do not testify they will be subject to contempt and possibly spending time on the county dole. No one wants to face the prospect of spending the night in jail. This is a possibility if you refuse to answer the court and testify.

The process works and it works well. The mediators that I work with settle well over 75 per cent of the mediations they mediate. I think percentage of success would be greatly reduced if there was not the element of confidentiality present in the mediations. I know of three mediators that have faced the same situation I faced and they chose to remain silent and not testify or produce their records. This did not happen without a fight, but they did protect the process. No one has had to spend over night at the jail but still that possibility was there.

I think it is important at least to understand that we as mediators can and do face the possible situations where our morals and ethics cross. It is best to give some forethought to that situation and know what choices we have and know what choices we will choose if forced to make a choice.

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