by jcooper131 | Feb 10, 2014 | Houston Mediation and Arbitration
Whether you turn on the television, log on to the internet, or open a newspaper ethical failures are being reported. These ethical failures infect both business and government, and they encompasses a range of issues. What is surprising is that these failures in ethical behavior occur despite the existence of written policies and procedures, codes, and corporate statements of Values. Many of these entities have corporate cultures that call for ethical behavior within a company structure and towards external clients and suppliers/vendors.
Ethical lapses can have serious consequences that impact a company’s reputation, its relationship with stakeholders, and even with various governmental entities. Why then are there ethical failures by supervisors and employees up and down the chain of command? What leads individuals to take shortcuts, or make decision that are not in the best interest of the organization or the company? These and other equally valid questions point to what I believe to be a major weakness in many corporate initiatives related to ethics. It stems from a focus that is almost entirely directed at compliance to legal standards.
As stated by Dr. Leonard J. Brooks in his book Business and Professional Ethics, a sound basis or strategy to comply with state and federal laws governing ethics is an absolute requirement in today’s environment. The penalties laid out in the statues are severe. Policies and procedures designed to assure compliance to statutes are a necessary requirement. Yet, where many companies fail is in structuring all of their training toward prevention. All of the checks and balances focus on surveillance mechanisms, procedures and standards emphasize control and the limiting of authority, and they institute monitoring processes and audits to assure compliance.
This focus on compliance to the exclusion of everything else is designed to prevent bad behavior from occurring. This emphasis on preventing negative outcomes will always fall short of its objective if the other side of the coin is missing. That is training managers, supervisors, and employees to work positively inside an ethical framework. Good behavior has to be discussed, sometimes even taught, and reinforced on a regular basis.
When I am asked to give talks on ethics I make clear to those listening that ethics has to be treated as a discipline, and much like safety programs discussed on a regular basis. Leaders and managers and all levels need to engage in practical exercises to help employees understand what constitutes a conflict of interest, where it can arise, and why it is different from the concept of improper behavior, sometimes called impropriety. That they can intersect and become one and the same is true, but they don’t mean the same thing. There are many other practical exercises that should be examined and discussions that should be undertaken on a regular basis to aid employees up and down the chain of command to stay within the four corners of what is ethical.
by jcooper131 | Jan 17, 2014 | Houston Mediation and Arbitration
Mediators can use various mediation models to aid parties in conflict achieve a positive outcome. The Transformative Model is one of the more useful approaches in that it does not try to override the interests of the parties in dispute. At the heart of most disputes is the basic truth that the parties have differing goals and objectives; their interests are incompatible and thus are the core of the conflict.
The transformative model respects the individual differences held by the parties, but allows the parties to take control of the process and change the dynamic from negative or destruction actions and language to actions or language that is constructive. The interest-based discussions are taken over by the parties in dispute and they are then empowered to examine other ways and means of resolving the dispute, and to finally crafting a solution or set of solutions.
In this model the mediator’s role is to support the parties as they shift from a defensive posture to a relationship approach where the parties recognize they have the power to affect the outcome where the process itself is positive and the potential outcome is positive. Once the mediator initiates the mediation process on the basis of the transformative model, he/she must exercise patience and restraint because the process within the transformative model where the parties take control of the interaction is neither smooth nor seamless. In this new and tentative relationship, the interaction of the parties will advance toward potential alternatives and retreat back to defending their previous point of view. Yet, because of the environment nurtured by the mediator, the parties advance more frequently than they retreat.
The mediator cannot lose sight of the goal which is to get the parties to take ownership of both the process and the outcome, and to do so in a positive way that brings resolution to the dispute. In the modern business lexicon the word Empowerment is over used and often misused, but in the context of this type of mediation it is accurate description of what must take place in order for the parties to successfully construct a lasting resolution to their conflict.
Whenever I am tempted to steer the parties toward a more constructive dialogue I remind myself of what a man by the name of Andy Hickman wrote in his book, Stuff That Really Matters, about what he called the Bonzai Principle. In this story Mr. Hickman reminds his readers that the Bonzai tree, beautiful as it may be, was not designed to be six inches tall. It stays that way through the actions of individuals. So whenever I start thinking I know best, I remind myself that I may be doing the opposite of what is best.
by jcooper131 | Jan 4, 2014 | Houston Mediation and Arbitration
A common misconception is that careful adherence to and management of a contract will prevent contract disputes. Experience has shown us that even well managed contractual relationships experience unresolved issues that develop into contract claims. Some are minor and are quickly resolved, but others, like an untended field taken over by weeds and thickets, will be consumed by wasteful conflict and arguments. High risk contracts, such as those with aggressive milestones and demanding scheduling requirements, are particularly vulnerable to unresolved claim conditions.
It is a given, an axiom if you will, that disputes such as these are resolved with more success when the parties directly involved with the dispute negotiate a compromise where both parties derives a benefit that is deemed acceptable and of sufficient value to allow the work to progress and the relationship to be preserved.
Sometimes those two objectives require the assistance of an impartial third party to mediate the dispute. The emphasis needs to be on mediation rather than arbitration or litigation, as neither of these will accomplish the dual goals of assuring progress of the work and preserving the relationship.
