Dysfunctional Condo Boards: (Part Two) Strategies for Getting Your Board Un-Stuck

In my previous post, I discussed ways of preventing condo board conflict.  This post discusses some typical problems that condo boards face, and offers some solutions.

The board is divided into two opposing cliques, with differing positions on every issue.  Discussions get personal really quickly.  We insult each other rather than discuss the problems in the building.  There is a real lack of civility, and nothing gets done.

There is nothing wrong with board members holding different points of view.  What is crucial, is how you discuss and debate the options before you.  Even if you have not already agreed to keep things respectful, it is not too late to discuss how you wish to interact as a group and to commit to some ground rules.

When any disagreements arise, focus on problems, not on personalities.  Keep the discussion related to the issues before you, and not on the personal qualities of the people involved. Your best strategy here is curiosity. Ask questions, and try to let go of assumptions you may have already formed.  Try to understand why others hold the views that they do. Is the other party drawing on different sources of information?  Do you have more fundamental disagreements, such as diverging opinions about the staff and the manager, or different views on what is most important in the building?  Once these disagreements are on out in the open, it may be easier to discuss them effectively and eventually to move beyond them.

Given that groups of people will always have points of disagreement, how can you disagree in a respectful, productive manner?  First, raise concerns about specific issues, not about the other person’s character or world view.  Second, speak from your own perspective.  Rather than say, “You are too stupid and short-sighted to understand the value of preventative maintenance;” try, “I am concerned that if we do not address this issue before the winter, we will have worse problems by the spring.”

Remember, you do not have to be friends with your fellow board members, just as you do not have to be friends with your co-workers.  All you have to do is co-operate on a limited number of tasks.

The board members don’t trust one another.

We are used to thinking of “trust” as a personal quality.  We feel that some people are worthy of our trust, while others are not.  But this is only one way to think about trust.  Another way of approaching trust is to see it embedded in rules, procedures and processes.  When you drive down a busy street, what makes you “trust” that the other drivers will stay in their lanes, stop for red lights, and (for the most part) drive with regard for the safety of others?  The other drivers are strangers, so it cannot be that you have personal feelings of trust towards them.  Instead, you have to put your trust in traffic laws and in the fact that the laws are generally enforced.

The rules and charters of your condo corporation are similar to the rules of the road.  Make sure that your policies, including your “Conflict of Interest” policy, are clearly written, and that all of the board members understand them.  Make transparency the norm, so that documents such as receipts, bids, and contracts are available to all board members.  There will always be specific individuals whom you may not trust, and others who may not trust you.  If everyone puts their trust in procedures and policies, you should be able to work together effectively even if you lack confidence in one another.

What to do if one or more board members consistently flout or disregard the corporation’s policies and resist transparency?  Condo boards sometimes control a great deal of money and, unfortunately, fraud may be a possibility.  Consider consulting with the condominium lawyer.

The board members get along well.  Meetings are very calm.  There are no insults or harsh words.  But there is also no lively discussion; no one asks questions or raises concerns.  In fact, no one says much of anything….

Your board may be well-mannered, but is it truly efficient and effective?  A board that seems harmonious and conflict-free might be as dysfunctional as the board that screams at one another.  The most effective teams are not necessarily always in agreement.  They may have intense discussions and disagree on any number of issues.  The difference is that they focus on problems, and not on personal differences.

Keep in mind that boards are accountable to condo owners and are supposed to act in the owners’ best interests.  Sometimes that might mean disagreeing with your fellow board members, raising concerns, and weighing the pros and cons of a number of different options.  Remember that questioning the advice of the condo manager or board president is not a sign of disrespect or disloyalty.  As long as you raise matters respectfully and refrain from personal attacks, bringing up legitimate concerns is part of being an effective and responsible board member.

The president dominates the board.  No one stands up to him, and some board members are even afraid of him.

It would be nice to think that we were through with bullies when we left school playgrounds.  Sadly, bullies can be any age and they are found in all walks of life.  Bullies rely on others being too afraid or too craven to stand up for themselves and for others.  If there is a bully on your board, you may have to tread very cautiously.  When you raise concerns, be extra-careful not to let the discussion get personal.  If someone gets personal with you, guide the conversation back to the issues under discussion.

Confronting a bully is hard, and you will have to decide yourself whether confrontation is the best strategy in your situation. We often focus on the costs and risks of acting, yet fail to consider the costs and risks of not acting.  Avoiding a problem almost always contributes to its longevity.  The longer you let others get away with bad behaviour, the harder it will be to call them on it in the end.

Finally, if you and your fellow board members are in conflict, think about what you might be doing yourself to contribute to the on-going poor dynamic.  Have you formed assumptions about the other members?  Do you fail to listen carefully, because you feel that you already know what they will say?  Are you so convinced that your own views are correct that you refuse even to hear about other options?  If you answered “yes” to any of these questions, you have taken the first step in realizing that conflict is two-sided, and perhaps the first step in turning around a dysfunctional board.

If the challenges seem too great for the board to turn things around on their own, consider bringing in a mediator.  Mediators are neutral third parties who are trained in conflict analysis and resolution.   They can help facilitate and manage discussion so that all parties are heard, tensions are diffused, and the board can get back to making good decisions.

Note:  I formulated these ideas with the help of Dr. Pamela Hudak, and a slightly different version of this article appeared in the Spring 2012 issue of The Condo Voice, a publication of the Canadian Condominium Institute.

Dysfunctional Condo Boards: (Part One) Preventing Harmful Conflict

The Directors of Distillers Company Limited The following are excerpts from letters sent to condoinformation.ca an independent website set up to help condo owners:

I was elected to the Board and was the first new member that this Board had had in 8 years. They never accepted me, never considered what I had to say, had meetings without me and I was totally isolated…

Myself and another Board member don’t agree with what the others and especially the president are deciding because they’re just throwing money at problems that could be solved with better communication and a bit of leg work on the part of our staff. But the two of us just vote with them, in my case because I am afraid of reprisals….

Our Board of Directors resembles mafia like boards controlled by a godfather president. The president of my condo has controlled the board for 20 years [… ] As well, he has installed the soviet style politburo cronies who don’t ask questions and only raise their hands when asked.

Does any of this sound familiar? Of the 1, 144 letters sent to the site, more than half discussed problems with condo boards.

When condo board members are caught in conflict the consequences can be far-reaching. Decisions are postponed and the property deteriorates as problems are not addressed. Owners wonder what’s going on and become frustrated with the lack of communication from the board. Meetings may be overly long and frustrating, causing stress for members and their families.

Why do some condo boards have engaged, hardworking members who protect the best interests of the owners, while others are mired in conflict and dysfunction? If you are a condo board member, what can you do to make sure that you and your fellow members can work together effectively?

Whether you are on a newly formed board, or your board has been together for some time, there are steps you can take to make sure that you work together effectively and respectfully.

Spend some time getting to know one another. You don’t have to become best friends with your fellow board members; you don’t necessarily even have to like them. But knowing a little bit about their backgrounds and about who they are as people can go a long way to insure that your interactions stay respectful. Knowing that Sally spends her weekends looking after her elderly parents, or that Jim did a tour of duty in Afghanistan, might help keep things in perspective when differences of opinion arise.

Knowledge is power. Familiarize yourself with the condo act, and with the rules and procedures of your own condo. Understand your rights as an owner, and your responsibilities as a board member.

Decide on ground rules for your interactions. Resentment can arise when people have different expectations for how meetings will be run. Taking a little time to work things out in advance can save a lot of time and effort down the road. Will all members agree to do their homework and be prepared for meetings? How long will discussions go on before a vote is called? When decisions are reached, will the board members support one another, even if they don’t agree with the outcome? Should members agree to keep their discussions confidential, and to avoid negative gossip about internal group dynamics? Committing in advance to respectful conduct helps to ensure that meetings stay focused and productive.

Next time: Some typical problems, and how to move beyond them.

Note:  I formulated these ideas with the help of Dr. Pamela Hudak, and a slightly different version of this article appeared in the Spring 2012 issue of The Condo Voice, a publication of the Canadian Condominium Institute.

Conflicts that Should have been Mediated: (2) The Elusive Parrot

Condo Conflict Resolution: Elusive Parrot
Photo credit:  SantaRosa OLD SKOOL (via flickr)

Every now and then I hear about a conflict that wasn’t mediated but should have been.  Mediation would have saved the participants time, money and aggravation.

What is the cost of breaking a rule?  If you live in a condo in Ontario the cost can be very high indeed.  One of the provisions of Ontario’s Condominium Act is that condo owners who fight compliance applications can be obliged to pay the condominium board’s legal costs, as well as management fees and surveillance costs.  An owner who doesn’t pay up might find a lien placed on his unit.  The reason for this extraordinary provision (which is not enjoyed by individuals or corporations) is to discourage owners from pursuing frivolous lawsuits against boards.  After all, the legal costs for a condo board are shared by all owners, and it would not be fair for the corporation as a whole to suffer because of one litigious owner.  Condo owners who go to court over compliance issues have to be pretty confident that they have a strong case.

(Please note that I am not a lawyer and the above paragraph is not intended to be taken as legal advice!  If you are a condo owner in dispute with a board, please consult a lawyer, preferably one with experience in this area.)

The cost of breaking the “no pets” rule for their condo building almost cost Michael and Margarita Bazilinsky more than $40,000.  At some point, late in 2010, judging by squawks heard in the corridor, a parrot took up residence in the Bazilinskys’ unit.  Mr. Bazilinksy claims that he was merely parrot-sitting for a friend, and he supplied affidavits from three independent parties (a personal trainer, a real estate agent and an electrician) affirming that there was no parrot in the unit.  The board inspected his unit in early 2011 and found no evidence of a parrot.  They were convinced, however, that Bazilinskys had smuggled the parrot out of the unit for the day, and pointed to what they deemed “suspicious” footage on a surveillance camera of the Bazilinskys taking a covered box out of their residence.  In August 2011 Mr. Bazilinsky consented to an order to remove the elusive parrot, and to pay the board’s court costs of $3000.

The board then exercised their right under the Condominium Act to recover “actual additional costs” related to their eviction of the parrot.  They placed a lien on the Bazilinskys’ unit for $41,599.  Last month a judge ruled that this amount was excessive, and ordered Mr. Bazilinsky instead to pay $6500 of the board’s legal fees, less the $5000 he had to spent in court costs to bring the recent motion.

I learned about this case from an article in the Globe and Mail by Ian Merringer, who mentions that both parties claim that the other party had waived opportunities for mediation.  The Condominium Act includes a mediation process intended to resolve disputes before legal costs become excessive for either party.  From the brief description and the outline of facts presented in the article, it would seem that both parties had something to gain from an attempt to mediate.  Even if the Bazilinskys had eventually to find another home for the parrot, a mediated agreement to that effect would have cost significantly less than the legal costs they eventually incurred.  Mediation would have saved money and probably also time for the board.  And let’s not forget that the Bazilinskys and the board members are neighbours who are likely to see one another in the corridors and other public areas of the building.  I can’t imagine that their interactions now are anything but tense.  While they might never have been friends in the first place, listening to each other and working towards a mediated agreement might at least have given them the dignity of mutual respect.

Read about another Conflict that Should have been Mediated (curiously, also involving an animal.)

Negotiations and Trust

TrustMediators typically hope that the negotiations they facilitate will be “win-win.”  This means that each party, while not perhaps getting everything they want, will get something of value or importance – something that they would not necessarily have gained through a different kind of dispute resolution process.  Mediators are encouraged to think broadly and help parties create value.  To use a robust cliché, we try to help the parties think about how to make the pie bigger before we help them portion it out.

So I was saddened to read (in the February 2, 2012 issue of The New Yorker) of negotiations that could be described only as “lose-lose,” with the parties ending up worse off than they were before.  Ian Frazier’s article, “Out of the Bronx:  Private equity and the cookie factory” tells the story of what happened when Brynwood Partners bought the Stella D’oro cookie factory.  A quick summary:  The new owners announced that they would reduce salaries and benefits.  Workers went on strike.  Eleven months later, Brynwood partners was ordered to reinstate the strikers.  They complied, but soon after sold the factory to another company which closed it down and moved production to Ohio.  The strikers lost their jobs; Brynwood Partners reports losing “upward of seven or eight million dollars”; and the community lost the benefits that come with hosting a profitable business (not to mention, a nearby reliable source of yummy cookies).

Frazier’s article does not say much about the negotiation process between workers and the new owners, and I do not know whether mediators were involved, and if so, what style of mediation they favoured.  But one detail from his account stood out:  The strikers distrusted the new owners and did not believe that they were telling the truth about the company’s financial situation.  And without an accurate idea of the company’s profitability, they had no way to judge if the salaries they were offered were reasonable or exploitative.  (The merchandise mart that took over the factory building will pay lower wages than Brynwood had proposed in the rejected contract.)

Lack of mutual trust is often a factor by the time parties come to mediation.  How can mediators get parties to trust one another?  The answer may surprise you:  They cannot and should not try.  Personal trust has to be earned over time.  Mistrust can be a protective response, and people sometimes have very good reasons for not trusting one another.  A mediator risks losing credibility if she encourages people who are mistrustful of one another to ignore these feelings.

But thinking of “trust” as a personal attribute is only one way to think about it. There will always be specific individuals whom you may not trust, and others who may not trust you.  In many disputes, trust can be “out-sourced.”  That is, both parties can agree to put their confidence in a neutral evaluator.  For example, in a strike situation where parties have different views of the organization’s financial prospects, a mediator might suggest bringing in an independent accountant or valuation expert.  Family members whose disagreements over the value of an estate are complicated by personal mistrust might agree to seek out several assessments and work on the basis of their average.
When people mistrust one another – and even when that mistrust is entirely appropriate – they can often continue to work together and negotiate effectively. When disagreement over some factual matter is driving a dispute, parties who can out-source trust might be able to come to a “win-win” agreement after all.

Is Your Workplace “Flourishing”?

our dogwood blooming
There are a number of different words that could be used to describe a happy, productive workplace.  I chose “flourishing” because I want to emphasize the links between well-adjusted employees, dynamic teams, and organizational success.  (And yes, if you know about my philosophy background, you will probably have picked up on the nod to Aristotle!)

Flourishing workplaces share a number of features, whether the work environment is industrial or white-collar, academic or professional, generation-Y casual or established and staid.

These are some of the differences between flourishing and non-flourishing (withering?) workplaces:

In a flourishing workplace people feel free to speak their minds.  They share reservations about plans and projects.  They ask hard questions without fear of reprisal.  In a non-flourishing workplace, people feel they have to “tiptoe” around others and they keep their concerns about workplace issues to themselves.  The whole organization is weaker as a result.

In a flourishing workplace meetings are lively.  Everyone is engaged.  Employees understand that if they speak up, their concerns will be acknowledged, even if decisions do not always go their way. In a non-flourishing workplace, meetings are painful.  They may be boring, with “surface harmony” masking a lack of engagement.  They may be acrimonious and hostile, indicating a lack of mutual respect.  Or meetings may seem continually to cover the same ground, because a consensus about basic issues has never been achieved.

In a flourishing workplace “water-cooler talk” is social.  Employees do not engage in negative gossip about one another or about the organization.  When casual conversation is work-related, it is constructive and in a spirit of problem-solving.  In a non-flourishing workplace, casual conversation is fueled by rumours, back-stabbing, and fear of possible change.

In a flourishing workplace people deal with one another (and with other divisions) directly.  If a conflict arises, people try to solve it face-to-face rather than by e-mail or by phone.  (I’ve written previously about the dangers of email communication.)  They understand how to raise concerns in a respectful manner.  In a non-flourishing workplace, employees may turn to elaborate back-channel strategies rather than confront one another directly, wasting effort and time that could be spent more productively.

Most important of all, in a flourishing workplace employees are engaged by their work and motivated to do their best.  They feel that what they are doing is important and that their contribution matters.  In a non-flourishing workplace, morale is low.  Employees do not feel connected to one another or to the work that they do.  This may be evident in higher-than-average rates of sick leave, unexplained absenteeism or low employee retention rates.

Which better describes your workplace, flourishing or non-flourishing?

Note:  I formulated these ideas with the help of Dr. Pamela Hudak.

Turning Around a Team (in the real world)

Stetson Hatters Basketball team vs JU team.Last week Forbes published a widely read article (over 15, 000 views) called “Ten Ways to Turnaround a Dysfunctional Team” by Eric Jackson.  Much of the piece was solid, if unspectacular advice, such as, “Don’t have too many meetings,” “Hold people accountable,” and “Measure progress.”  Not much to argue with there.  However Mr. Jackson’s first two recommendations  – “Get rid of non-performers immediately” and (in so many words) “Fill the vacant roles with the best people possible” – merit some discussion.

“Get rid of non-performers immediately.”  Sometime hard decisions have to be made and individuals have to be let go for the sake of the company as a whole.  Yet it is rarely that simple.  There are many reasons why it might be nearly impossible (or spectacularly unwise) to “get rid” of a particular person.  Different jurisdictions and different workplace environments (unionized or not) have different rules and conventions around letting people go.  There are other things to think about as well.  What if you are working in a family business and the “non-performer” is the boss’s sister – or your own sister?  What if the person you have identified as a problem is an old fraternity buddy of someone higher up in the hierarchy?

Mr. Jackson writes that you will engender goodwill among the others if you get rid of the “cancerous” members of the team.  But there is a difference between a “non-performer” and a “cancerous” or difficult person who brings down everyone around them.  If the non-performer is well-liked, getting rid of him or her is bound to demoralize the others.  Forget about any “goodwill.”  On the other hand, the difficult, widely disliked person might in fact be your top performer.  Mr. Jackson performs a little rhetorical slight-of-hand when he identifies “non-performers” with “cancerous” members of the team.  (And don’t get me started on his choice of metaphor here…)

A better approach?  Find out why the non-performer or the weak performer isn’t doing better.  Maybe he has problems at home and this is a temporary setback.  Maybe she just isn’t suited to the role and needs some kind of change.  A friend who has worked for several years in the banking industry tells me that over the years she has moved many people from sales into administration.  All of these were good workers who simply weren’t comfortable in sales.  Once you have identified why non-performers aren’t doing better, you might have some idea of how the situation might be turned around.

“Fill the vacant roles with the best people possible.”  Every company wants to hire “the best people,” just as all parents wants their child to be the smartest in the class or the most valuable player on the hockey team.  But we all know that, in the real world, not every company will be able to hire “top talent.”  Your organization might be at a geographical disadvantage; you might simply not be able to afford  to pay the kind of salary that top talent can demand.  By all means, hire the best people you can find and the best people you can afford.  But you hardly need me (or anyone else) to tell you that.

I see another problem with Mr. Jackson’s suggestion.  It seems to assume that the way to have a great team is to make sure it is filled with the “best” people.  This seems like common sense.  If you want to  bake a cake, assemble the best ingredients and you will get the best results.  But a workplace team is not like a cake.  A group of excellent individuals might not be able to form a great team.  They may not be able to work together effectively.  They may undermine, rather than support one another.  They may be hesitant to share ideas or offer necessary critical feedback.  If you are in the position of having to turn around a dysfunctional team, it is not enough to make sure you have the best people.  You’ve also got to make sure that they are interacting in a productive and respectful manner.

Turning around a dysfunctional team is hard.  It is a real test of managerial skill.  If it could be done in ten easy steps, every company would be successful.

Apologies 101

apology deniedYou may have heard that Tuesday night’s performance by the New York Philharmonic at Avery Fisher Hall was abruptly halted because of a stubbornly loud and persistent cell phone.  The orchestra was playing the final movement of Mahler’s Ninth Symphony, considered by some to be one of the most emotionally rich and sublime pieces of music ever written.  Towards the end, at the worst possible moment, the insistent plinking of the iphone “marimba” ringtone completely shattered the atmosphere.  Alan Gilbert, the conductor of the Philharmonic, actually stopped the performance and glared at the offender until he managed to silence the phone.  (You can read an amusing account of the evening here.)

Blog postings and news articles about the event soon filled up with vitriolic comments.  What kind of a person forgets to turn off their cell phone before a concert, and then magnifies the error by failing to silence it promptly as soon as it sounds?  A New York Times article answered that question the next day.  The owner of the phone, far from being a thoughtless person who didn’t appreciate music, was a longtime subscriber to the orchestra and was absolutely mortified by what happened.  And there was an explanation:  The phone was new and he had indeed turned it off before the concert; but he hadn’t realized either that the phone’s alarm was set or that it would go off even though the phone was set to “silent.”

There is something to be learned here beyond the obvious lesson of “be familiar with all of the noise-making features of any device you carry.”  The day after the concert, an orchestra official called the owner of the cell phone (following the NYT, I’ll call him “Patron X”) and politely asked him not to do it again.  Patron X asked if he could be put in touch with Alan Gilbert, in order to apologize to the conductor personally.  Patron X, through a NYT reporter, also apologized to the whole audience.  Here is what he said:

 “It was just awful to have any role in something like that, that is so disturbing and disrespectful not only to the conductor but to all the musicians and not least to the audience, which was so into this concert,” he said by telephone.
“I hope the people at that performance and members of the orchestra can certainly forgive me for this whole event. I apologize to the whole audience.”

Patron X’s apology hits all the right notes.  Here’s why:

  1. He accepts responsibility.  There is a world of difference between “I’m sorry that I disturbed you” and “I’m sorry that you felt disturbed.”
  2. He does not try to justify his actions.  In making an apology, one must absolutely avoid the phrase, “I’m sorry, but…”
  3.  He acknowledges the harm he has caused.  He does not try to minimize what happened.
  4.  He apologizes to everyone effected – the conductor, the musicians, and the audience.
  5.  His apology is sincere.  He is genuinely upset about what happened and really contrite.  An insincere apology can damage a relationship more than the absence of an apology.
  6. The apology is well-timed. Patron X sought out the opportunity to apologize and did so at the earliest possible opportunity.

Patron X gets extra points for apologizing in person, rather than by text message, email, or letter.  It isn’t easy to confront someone whom we have disappointed, and it cannot have been easy for Patron X to seek out the conductor who had been glaring at him only the night before.  But if a relationship is important, it is worth making the effort and setting aside one’s own discomfort to apologize personally.

Happily, the NYT reports that Mr. Gilbert accepted the apology.

Workplace Sexual Harassment: A Problem for Management


This weekend’s Globe and Mail contained an excellent example of how not to handle a sexual harassment complaint:

RCMP Constable Janet Merlo says she felt compelled to respond when a supervising officer made a sexist remark to her in the company of a high-ranking official from the force.

“You know, if I were to make a complaint, I could probably retire on just what you say to me alone,” she said.

“What was that?” her boss replied. “Did you say you want to retire on me? Does that mean you like it on top?”

It was at this point that the senior RCMP officer in the room interjected.

“If you’re going to talk to her like that, do it somewhere else,” he said to the male officer. “I don’t want to be a witness to stuff like that.”

Honestly, I don’t think I could invent a better example of how not to handle an incident of sexual harassment.  First, the remark by the Constable’s supervising officer clearly fits one definition of sexual harassment, which is remarks of a sexual nature which are known (or should be known) to be unwelcome.  It is clear that the remark was unwelcome, as the Constable communicated as much when she referred to the possibility of making a complaint.  Second, the “high-ranking official” clearly knows that the remark was inappropriate – that’s why he told the supervisor not to speak to Constable Merlo in such a way in his presence.  But while he communicated to both that he understood the remark to be inappropriate, he also communicated to both that it was fine for the supervisor to go on making such remarks, as long as he did it “somewhere else”!  No wonder that the Globe reports that the biggest challenge facing the RCMP’s new Commissioner is the history of allegations of harassment by female Mounties.

As I wrote about workplace bullying in my previous post, workplace sexual harassment is a problem for management.  While I believe that women should be encouraged to speak up in the face of inappropriate remarks, expecting employees to deal with sexual harassment on their own is both unrealistic and an abdication of management’s responsibilities.  As is the case with workplace bullying, how management approaches the problem can make the difference between a flourishing and respectful workplace, and a workplace with low morale, low productivity, high employee turnover and a host of other problems.

Happily, I also have an example of an organization that was more successful in its response to an allegation of workplace sexual harassment.  A friend who was at the time in C-level of a flourishing start-up told me that he had a number of complaints by different female employees about a male co-worker who was making sexually-charged remarks.  My friend spoke to the employee in private, told him that the remarks were inappropriate and unacceptable, and that his behaviour would have to change.  When my friend learned that the remarks had continued and that the employee in question had made no effort to change his behaviour, he felt that he had no choice but to let him go.  It wasn’t easy for my friend to confront the employee.  And it certainly wasn’t an easy decision to let him go.  But my friend really felt that he had no choice.  He realized that if he failed to act, that would have been sending a message to his female employees that he tolerated sexual harassment and that he didn’t care about their discomfort.

Dealing with complaints of sexual harassment probably tops the list of things that a manager would rather not do.  No one looks forward to this kind of difficult conversation, but such conversations can become easier with communications training.  Having a code of conduct or other policy document in place is also crucial, as is making sure that all employees are aware of it.


Bullying and Workplace Culture

Bully Free Zone You can find a lot of information and advice about workplace bullying on the internet. Unfortunately while most of the information and advice is good so far as it goes, I find that much of it nonetheless misconstrues the nature of the problem.

Most discussions of workplace bullying start with a definition of bullying. Basically, bullying is “persistent harassment”, and “harassment” is conduct that is unwelcome or ought to be known to be unwelcome. Harassment might include insults and demeaning remarks, comments of a sexual nature, offensive jokes, or intimidation. Most discussions of bullying then move on to advice: “What to do if you are a victim of workplace bullying.” The advice usually amounts to four basic points:

  • Document what is happening – keep a record of the harassment as it occurs, with names of witnesses if applicable.
  • Stand up for yourself.
  • Reach out and let someone know what is happening. Contact a union rep, or the Human Resources Dept, or the Employee Assistance Dept.
  • If possible, try not to be alone with the bully.

As one-size-fits-all advice, this is pretty good. The problem is that the focus is on individuals – bullies and their victims – rather than on the workplace culture that makes both kinds of roles possible. Bullying is problem of organizational structure or culture; it requires management-level intervention and solutions. Expecting the victims of bullying to solve their own problems is both unrealistic and an abdication of management’s responsibilities. How management approaches the problem can make the difference between a flourishing and respectful workplace, and a workplace with low morale, low productivity, high employee turnover and a host of other problems.

I was once called in to a workplace where Mike, a recent hire (and not his real name) was persistently harassed by his immediate supervisor. The supervisor insulted his work, made a big deal out of minor mistakes, denied him information that was necessary for completing work properly, and generally treated him horribly. Mike liked the actual work and seemed to be pretty good at it, but things got to the point where he dreaded having to show up in the morning and had to take an unpaid stress leave. Luckily for Mike, he had the support of his co-workers who could see the supervisor’s bullying behaviour for what it was.

Mike wasn’t so fortunate when he approached management about the problem. The manager and the supervisor had a history together that Mike and the manager did not. The manager assumed that the supervisor’s behaviour was justified, that Mike was a “hot head” who didn’t know the job yet and couldn’t take constructive criticism. You can imagine the messages sent by the manager’s failure to investigate properly. The bully got the message, “Your behaviour is just fine and there is no need to change.” Mike got the message that he was not valued in the organization. And his co-workers got the message that, if they were in a similar situation, management would not support them.

It is unfortunate but hardly surprising that things got worse for Mike before they got better. Eventually, it took all of Mike’s co-workers in the department together going to the manager to let him know what they’d seen. And I have to give credit where it is due: When the manager understood the reality of the situation, he made it clear to the supervisor that the bullying behaviour could not continue. When the supervisor received that message, clearly and in no uncertain terms, his behaviour changed.

The lessons for managers: Bullying is a problem of workplace culture; it is not a problem that you should expect employees to solve between themselves. Everyone, at every level of the organization, needs to know what kind of behaviour is unacceptable. And when someone crosses the line of acceptable behaviour, management needs to be willing to back up their words with action.

More on Confidentiality in Mediation

November 29, 2010Confidentiality is a basic principle of mediation.  But it seems that it is also one that mediators have to be vigilant about protecting.

Earlier this week I was fortunate to attend a talk at the ADR Institute of Ontario by David Bristow, a very respected lawyer, mediator and arbitrator.  Mr. Bristow told us about some recent important new cases with implications for ADR practitioners, and there was a lively discussion afterwards.  One of the cases he discussed, Hand v. the Walnut Valley Sailing Club, Kansas, caught my imagination

Mr. Hand had been a member of the Sailing Club for about 20 years, when the club made some changes to a storage area where sailboats and other equipment was kept.  Mr. Hand protested against these changes, saying that they were in violation of the Americans with Disabilities Act.  When the management of the Sailing Club refused to act on his protest, Mr. Hand wrote a letter to Governor Parkinson.  Learning of this letter, the management of the Club cancelled his membership; Mr. Hand’s response was to sue under the ADA.  The lawyers for the Club filed a motion that Mr. Hand’s claim be dismissed, on the ground that 1) he is not disabled; and 2) the Kansas laws protecting whistle-blowers apply only to employees.  The presiding judge, Sam A. Crow, agreed, and the case was dismissed.

A few months later, Mr. Hand visited the club on two occasions.  (I believe that he was the guest of a member).  The Club’s lawyers wrote to Mr. Hand’s lawyers, demanding that Mr. Hand not enter club premises.  Shortly after, Mr. Hand visited the Club again and refused to leave when he was asked to.  The Club filed a request with the court for a restraining order against Mr. Hand.  The motion was denied.

At some point in the dispute, the parties were ordered to mandatory mediation.  Within hours of the mediation session, Mr. Hand had sent a blow-by-blow account to all members of the Club, plus assorted friends, via email.  He revealed the amount of money the Club’s management offered him to settle the case, his own response to the offer, the number of lawyers representing the Club, what their fees might amount to, and what the mediator said and did.  In short, he revealed basically everything that happened in the course of the mediation.

The judge (Mr. Sam A. Crow, again) was not amused, to say the least.  He dismissed Mr. Hand’s entire action as a sanction for violating the confidentiality of the mediation process.  Although the case is not binding on the courts of Canada, Judge Crow’s reasons for dismissing the case may be relevant for confidential proceedings anywhere.  (The text of the decision may be found here.)  Briefly, the judge found that Mr. Hand’s revelations were highly prejudicial, interfered greatly with the judicial process, and that the leak of confidential information was done knowingly and willingly.  All of these factors lead him to sanction Mr. Hand as seriously as he did.

The case of Hand v. the Walnut Valley Sailing Club is thought-provoking for many reasons.  On the face of it, the relative triviality of the issues makes it precisely the kind of case that should be kept out of the court system.  Yet Mr. Hand clearly wanted a public vindication for himself and a public reckoning for the Club’s management.  In that respect, he was not a good candidate for mediation.  Could the mediator have done more to impress upon him that effective mediation requires confidentiality, and that keeping mum would be in his interest?  Did Mr. Hand’s lawyers warn him about the possible consequences of breaching confidentiality?  We have no way of knowing.

The Kansas case, despite its relatively low stakes and lack of global significance, provides a vivid illustration of how mediation can go wrong if the parties aren’t fully committed to the process and to respecting confidentiality.