Often the ultimate cause of a dispute – industrial or otherwise – is not at all what people are talking about.

There are two sides to every issue, but sometimes the reason there are two sides has nothing to do with the issue. 

An example is the recent online brouhaha about legendary director Martin Scorsese’s comment that Marvel movies don’t classify as cinema. Some people think he’s appallingly wrong. Others think he’s making an obviously true point.

But the root cause of the argument isn’t a disagreement about how to define ‘cinema’. Instead it’s a bitter fight, mostly on social media, that involves a lot of personal attacks and basic misunderstandings. 

The first camp really likes comic book movies, and they don’t want to feel they have been enjoying something that is ‘not really art’. The second are concerned that the market rationality guiding tentpole movies makes it prohibitively difficult to get more artist-led films shown in theatres. 

While on some level both sides understand that they’re talking past each other, they nevertheless continue.

This same phenomenon plays out across a lot of human conflict – we fight proxy battles without addressing root differences – and workplace conflicts are no different.

Industrial disputes

Fair Work commissioner Katrina Harper-Greenwell is no stranger to work disagreements. She started her career in HR, with a focus on organisational psychology and how policies affect human behaviour, and developed a growing interest in industrial relations.

A lot of her experience is in the resources sector. She has worked with BHP (before it became BlueScope Steel), and worked on joint ventures with Rio Tinto and KBR. But one of her more notable jobs had to do with the headline-making industrial dispute surrounding the Wonthaggi desalination plant.

“Relationships at the site were not well established,” Harper-Greenwell says of the experience. “And there was a lot of hostility between the workforce and management. The underlying issues were quite often very simple matters but, because they hadn’t been dealt with at the time, they metastasized.”

This is something that is not atypical, she says.

“Historically, I’ve seen throughout businesses the hostility between the employer and the unions. But through the interest based approach, we managed to build relationships where the parties were not best friends but they could meet and discuss the issues and genuinely and respectfully consider each other’s interests in trying to resolve the issues at hand. 

“Rather than labelling each other and their positions it was really moving people off their positions and getting them to ask, ‘Well, all right, what’s the common interest here? Let’s try and resolve the issues at hand and try and find mutual outcome we can all agree with, knowing we can’t agree with each other on everything.’”

Above the fray

Harper-Greenwell doesn’t think the interest based approach is always applicable. In her current role as a commissioner, she often uses it in disputes brought under sections 240, 576(2)(aa) and 739 of the Fair Work Act. 

“The parties are often at loggerheads and they don’t really know why,” she says. “There’s been a lack of information sharing. And quite often this ends up driving the dispute. Because it’s an unknown. And when people don’t know things they start filling the void with assumptions.”

And because of a bad pre-existing relationship and past experience, the assumptions are negative. So a key goal as the mediator (and as a party to a dispute) is understanding the role each side plays, why they operate in the way they do and understanding what interests they are representing.

The reason for this is you want to broaden your options for resolving the disputes. “If you’re just dealing with a particular position you don’t have those broader options.”

But to fulfill the role of mediator, you have to be sure of yourself. Appropriately, considering its name, the interest based approach requires the mediator to have a real interest in fact finding. So they have to go in openly.

“At no stage can you make an assumption that you know what’s going on. You have to go in as if you’re a blank canvas and you’re relying on the parties to inform you. And that requires an inquiring mind.”

The basics of the approach

Harper-Greenwell offers a very basic outline of how she approaches a dispute between the two parties.

• Restate what the dispute is.
• Then ask each party to provide a summary of…
  • How they believe they arrived at the dispute.
  • What they understand the dispute to be about.
• Explore with them what their interests are. So start asking questions about the ‘where’, ‘what’ and ‘why’.
• Ask the parties to support their answers with objective materials as to how things came about. 
• At this point, if it’s not a genuine interest, some issues will normally drop off. Quite often hearing themselves state the position out loud will alert people to the fact that it’s not really part of the issue.
• Find shared vision, goals and compatible options for resolving matters.

But before you even begin to think about mediating, you need to be qualified. Harper-Greenwell says that often she’ll find that disputes that get to her have been previously handled by someone with insufficient training – or no formal training at all.

She herself did a course at the Cranlana Centre for Ethical Leadership, and she says it’s only through proper training that you can get the appropriate skillset. She also makes mention of the FWC’s New Approaches program, which is set up to help parties avoid arbitration and build cooperative working relationships.

“I think where HR can most benefit is getting a better understanding of the mutual, non-biased ethical approach to the dispute resolution process, and what their role is.”