By Terry J. Chapko
Sheppard, Mullin, Richter & Hampton
January 29, 2003

A disagreement between two peers is adversely affecting the morale of an entire department. Bickering between two key members of the management team is threatening to delay a time-sensitive project. What steps should companies take, and, just as importantly, what actions should they avoid, when they intervene to resolve such disputes?

First, companies must identify the parties involved and the nature of the dispute. If the clashing parties vary by gender, race, national origin, sexual orientation or any other category protected by law, employers should proceed with extreme caution and in conformance with the law.

Employers have an affirmative legal obligation to investigate and address complaints of harassment when the alleged harassment is based upon a protected category. Furthermore, even if the disagreement seemingly has nothing to do with the fact that one employee is a white female and the other is an Asian-American male, such differences usually assume paramount importance if and when the dissatisfied disputant files a lawsuit alleging employment discrimination.

Consequently, whenever employee discord may, even potentially, be based upon such protected differences, a company should make sure that whoever has been designated to deal with such disputes (i.e., a human resources department representative, a company attorney, an outside attorney) is consulted.

Similarly, if there is reason to believe that the conflict stems from personal issues affecting an employee or there is a hint of possible violence, an employer should avoid getting directly involved.

For example, if an employee is having difficulty coping with the breakup of a marriage and that difficulty is causing strife between he and his co-workers, do not play the social worker role. Instead, suggest that the employee contact the company's Employment Assistance Program or some other counseling program.

As for potential violence, if there is a credible threat of violence a company should consider contacting the authorities, obtaining a restraining order on behalf of the threatened employee and consulting with an outside expert on workplace violence.

If the dispute does not appear to be linked to animus based upon protected category differences or an employee's own personal issues and is instead just a typical clash of personalities or opinions, those charged with resolving such problems should act as quickly as possible to keep the dispute from escalating. They should also keep the following in mind:

• Acknowledge personal biases and try to overcome them. Bringing preconceived notions of who is right and who is wrong is hardly conducive to working out a mutually agreeable solution to the problem.
  
  
• Ensure both parties that their respective sides of the story will be heard and respected. When there is a power imbalance, such as a supervisor and a subordinate, make sure that the subordinate knows you are equally committed to listening to his or her version of the conflict. Even when the parties are peers, if one of them is more articulate (or is simply louder), reassure the other party that you are taking his or her concerns seriously.
  
  
• Refrain from offering a personal opinion about the dispute. Many employees love nothing more than to quote (often out of context) statements that appear to support their position in the dispute. Nothing will cause you to lose credibility as a neutral problem solver faster than an appearance of partiality.
  
  
• Refrain from imposing the solution you think is best for all involved. Brainstorm with the parties to come up with a number of alternative solutions to the problem. Get them to mutually evaluate proposed solutions. Once a solution is agreed upon and recorded, delegate responsibility for the implementation of the solution. Finally, check the results of the solution at a future date.
  
  
• Make sure the clashing parties understand what behavior, if any, the company deems unacceptable and explain the consequences of any continued unacceptable conduct.

Another option, besides assigning someone from within the company to try and resolve the disagreement, is to utilize an outside consultant. This option is recommended whenever a resolution of the dispute is hard to envision or when two high-level employees are involved.

Such consultants have the natural advantage of appearing to be neutral outsiders. They often bring valuable experience in settling conflicts in the workplace and a wealth of specialized knowledge on how to handle quarreling employees.

One such consultant is Mitchell Simon of the Simon Alliance Group in Encinitas. Simon regularly works with upper management to try and turn conflict into cooperation.

In one such recent case, directors and managers of different departments of a Fortune 100 company, who were scattered around the globe, were consistently missing deadlines on important corporate objectives and blaming one another for their failures. Naturally all this finger-pointing resulted in considerable acrimony.

After interviewing all the parties, Simon determined that the conflict was primarily caused by confusion over what the core objectives of the other departments were. The solution turned out to be a three-day retreat involving mandatory discussions of how each department could support other departments to reach the objectives sought by the company.

The participants decided on their own that enhanced inter-department communication was their biggest need. To implement this vision, they created cross-department teams, which were then assigned responsibility for implementing specific projects. This cross-department alliance not only helped put an end to considerable discord between key executives it helped develop significant new revenue streams for the company.

It must be remembered that not every conflict will be resolved as harmoniously as this example. Thus, when all reasonable efforts at resolution fail and the conflict is too disruptive to ignore, be prepared to take the necessary disciplinary action, including the termination of one or both of the parties.

Before taking such a drastic step, however, make certain that all previous attempts to resolve the problem have been carefully documented. Such a record will be invaluable if the disgruntled employee, or employees, file a lawsuit.

Chapko is an associate in the San Diego office of Sheppard, Mullin, Richter & Hampton.