SETTLING DISPUTES IS ALL ABOUT NEGOTIATION

What this article highlights for me, above anything else, is the fact that even when we engage the services of someone we think is professional in the Industrial Relations/Human Capital Arena, we may just be pouring oil on the fire. It is obvious from this article (and from personal experiance) that the labour lawyers and attorneys who engage in this kind of 'war fare" are either acting from a place of ignorance or are deliberately going this route in order to squeeze evey penny that they can get, out of already cash strapped clients. Clearly more care needs to be taken when procuring the legal services of anyone.

Regards

Nikki

06 October 2006 at 08h00

All individual labour disputes emanate from a time when the now-aggrieved individual was still an employee. This means that, prior to the termination, allegedly in an unlawful or unfair manner, the powers-that-be would have had an opportunity to ensure a lawful and/or fair termination.

Some eight years ago in Industrial Issued Columns in Workplace we looked at unnecessary mistakes by employers, and at the role of that egos and emotions play in these issues. Nothing has changed in the interim and I find I am by now at my wits' end on how to get sanity to prevail. Fortunes in legal costs can be saved and employers can manage their labour dispute risks more effectively.

War tactics are not the answer. Effective negotiations could, however, go a long way. Any skilled negotiator, having prepared an effective negotiation process, whether he or she represents either the employer or the aggrieved individual, will not allow him or herself to be sidetracked by a confrontational approach from the other party. I am often astounded by the confrontational "go-and-play-in-the-traffic" approach that is usually skilfully (or is it in a fool-hardy manner?) pursued by so many legal practitioners and employers when they should be negotiating a settlement.

This tactic, especially, when they are defending weak or mediocre cases, makes no sense at all. Being adept at provocative war tactics alone does not resolve individual labour law disputes. Negotiations, on the other hand, do resolve disputes! These experts in confrontational skills continuously use threats, legal technicalities, muscle flexing, demands, ultimatums and more threats of legal action.

These war tactics are usually contained in lengthy and costly legal letters, and their clients, of course, bear the costs. They generally work hard on their war tactics and the outcome is generally not an agreement, but a hardening of attitudes and a continuation of a vigorous pursuit of a legal solution. This is why, in so many cases, up to R100 000 in legal fees can be spent first merely to bring about a R50 000 settlement in the end. Positioning does play an important role in any negotiations. However, one should move beyond these conflict issues that form a barrier to the effective resolution of a dispute by, for example, agreeing to disagree and then focusing on the application of a problem-solving approach. Resolving individual labour disputes effectively through negotiation is not only about what you do but also how you do it.

A creative, innovative and problem-solving approach is needed to resolve the dispute. Negotiations are about power, about changing the position or stance of the other party. Threats and counter-threats, especially when the merits of your case are either weak or mediocre, don't resolve disputes, least of all individual labour disputes. In any event, a skilled labour law expert, when he or she is defending a strong case, is not going to be side-tracked by war tactics from the other side. What usually works very effectively is to prepare well and apply a problem-solving negotiation approach from the outset. Effective and skilled negotiators will rely on:- Effective and thorough preparation, focused on resolving the dispute and not creating more problems.

A sound tactical approach to the issues at hand. Using a problem-solving approach, even with substantive bargaining issues. Negotiations are often marred by the parties focusing on who erred most and who should take the blame, instead of agreeing to disagree and getting on with resolving the dispute. One has to ask oneself: are legal posturing and threats not something we should vigorously eliminate when looking for a solution to individual disputes?T he answer is obviously yes, but why then don't we put it into practice?

My parting message is this: To the employer - "put brains into gear before engaging the mouth!" (Get sound labour law advice and make sure you have the services of an effective negotiator on your side). And to the individual - when the rumours start, make sure you do the same in order to protect your rights. Then just wait for the employer's inevitable mistakes to happen!-

Pierre Marais is managing director of the Labour Law Group. Contact him on 011-679-5944 or via email: labourlaw@global.co.za. Back copies of articles can be obtained from Natasha at 011-679-5944.