Conflict: The word is derived from the Latin conflictus meaning, “to strike together.” The dictionary defines conflict as a clash, competition, or mutual interference of opposing or incompatible forces or qualities, such as ideas, interests, or wills. Destructive conflict distracts from otherwise productive use of time and energy, emotional and physical.

Neutral Fact-finding: An investigative process in which a lawyer/mediator conducts a due process type search for facts and answers relative to an existing conflict. It allows concerned employees a medium in which to communicate interests and issues to the employer, while enabling management to make informed decisions and take appropriate actions relative to the conflict.

Neutral fact-finding is voluntary and consensual, as the third party neutral interviews the claimant, respondent, and other vital personnel with information regarding the conflict. Because fact-finding is flexible to the needs of the organization, issues such as the scope of the investigation, specific people to be interviewed, the time to be allotted, confidentiality, administrative access, union involvement, costs and expenses, and other relevant concerns are discussed in the beginning.

The Workplace:

Conflict is a natural and normal consequence of interaction of people over time. Often, conflict can be instructive and beneficial, if one is capable of finding value in what most consider to be a negative situation. In cases of alleged wrongdoing, however, the focus is most often on blame and minimizing liability, with little early interest in lessons learned or making the best of a bad situation. When an investigation of alleged wrongdoing is initiated internally and employees become aware of the proceedings, a certain tension and rigidity transforms the workplace and vital information and facts can be elusive.

Neutral fact-finding can give the company a different view of the problem and can be a detriment to litigation. A neutral factfinder, trained in conflict resolution and knowledgeable in employment law, can conduct any necessary review, interview employees or others, and report all findings in a due process approach to investigating wrongdoing. This is especially required when top management is a perceived target of the investigation, or the usual investigators, such as human resources, are tainted by involvement in the allegations, or union officials are thought to be involved. The perception of an honest, thorough, and complete investigation is critical to the loyal and watching workforce. Where an organization’s usual internal investigation process is viewed as unreliable or biased, for any number of reasons, good faith participation and honest response to inquiry may be lacking. The outcome is an unclear picture of what occurred,  along with the notion that somebody got away with something or somebody became a scapegoat. To compound the original sin with a inadequate or weak investigation can complicate the desired outcome and confuse interested parties.

Neutral fact-finding is voluntary, although most employees will readily participate if the process is viewed as impartial and fair. The gathering of information through discussion and listening is conducted with people directly involved, including the accused, who should have the opportunity to have legal counsel or a union representative present during the interview. When enough information, facts, and pertinent data is collected and analyzed, the factfinder prepares a report of the findings to enable the employer to assess the problem and make speedy, yet informed, decisions and appropriate actions. This fact-finding approach allows the employer freedom to maneuver and position itself in an optimum legal posture, having paid for an independent review, conducted by a trustworthy neutral in a due process manner, free of over-reaching or self-serving activities, and remedial and speedy. This is not only the morally high upper ground, this is a message to the employees that, even though they do not work in a democracy, neither is it a dictatorship.

Neutral fact-finding is flexible and friendly to the organization’s conflict culture and can be tailored to particular requests or requirements. If it is viewed as fair, people will participate and contribute. To fulfill this perception, the neutral factfinder should initiate a strategy of involvement of key individuals to sanction the process. All communications should be considered confidential, pending the final report, and an internal gatekeeper should be assigned the responsibility of access to the factfinder. The initial planning meeting should include the corporate attorney and, if appropriate, the union president. The investigation should mature at a comfortable pace and be revised as necessary. The factfinder should be alert to possible resolutions, even though these options are the responsibility of the parties most closely involved. The considered judgment of management officials, after study and inquiry into the findings, through consultation with legal and human resource advisors, and with accurate and timely information, cannot be ridiculed as capricious or arbitrary.

Neutral fact-finding can be less painful to the organization, more cost effective, and highly responsive to decision-making requirements. It is an effective tool, but requires individualized adjustments to maximize information gathering while protecting confidentiality and costs. It is that individualized approach to this process that gives it the power and purpose to serve the needs of the organization in a fair and impartial manner, while delivering the legal requirements of a due process investigation. The California Supreme Court, in 1998, ruled in a wrongful termination case brought by an employee, who allegedly harassed another employee, that the governing standard for deciding whether the employer acted properly is “a reasoned conclusion, in short, supported by substantial evidence gathered through an adequate investigation that includes notice of the claimed misconduct and a chance for the employee to respond.” The California court added that “the question critical to an employers’ liability is not whether the terminated employee in fact harassed other employees, but whether at the time the decision to terminate his employment was made, the employer acting in good faith and following an investigation that was appropriate under the circumstances, had reasonable grounds for believing the terminated employee had done so.”