19 November 2023
By Katja Hemmerich
Mastering Informal Dispute Resolution: A Guide for UN Managers
This week, WFP’s Ombudsman undertakes her regular briefing of the WFP Executive Board, and the UN General Assembly’s Fifth Committee reviews the Secretariat’s Ombudsman’s report. A key theme they both highlight is that informal dispute resolution is often a faster and more effective means of dealing with workplace disputes than through the formal justice system - but that it is underutilized. The interventions cited to address this all focus on raising awareness amongst staff and managers of the informal dispute resolution services available from Ombudsman offices.
But is it just a lack of awareness of informal dispute resolution services in the UN that results in their underutilization? A number of systemic analyses of both the benefits and weaknesses of the UN’s system of internal justice in relation to building and undermining trust of UN staff in the system. Our spotlight outlines how these trust issues play out in the administration of justice and the windows of opportunity that this creates for managers to effectively use informal dispute resolution to resolve conflict in their teams. We use the latest analysis of the UN's administration of justice system to provide a 'How To Guide' on informal dispute resolution for UN managers.
We all use the term trust, but trying to define it can be quite complicated. Trust can exist between people, but organizations and processes can also be trusted, or not. Research from across multiple disciplines highlight that trust exists when the following two dimensions exist in a relationship:
there is a positive expectation of the other party’s intentions (a party can be a person or an organization) which is based on perceptions of that party’s integrity, benevolence towards the trustor and their competence in being able to deliver what is expected; and
the trustor is willing to take a risk and be vulnerable vis-a-vis the party they are trusting.
A key reason for the 2009 administration of justice reforms that impacted the UN Secretariat and related agencies, funds and programmes was to increase the trust among staff that workplace disputes would be fairly resolved. As a recent JIU report (JIU/REP/2023/2) highlighted, the management evaluation functions which replaced pre-2009 peer review mechanisms have garnered increased trust of UN staff because these mechanisms are generally staffed with trained lawyers and because they force a management response to a staff complaint within a set deadline (para. 107). In other words, staff perceive improvements with respect to the competence and integrity of the process.
The same JIU report also highlights that from 2012 to 2015 between 33% and 55% of the cases received by the UN Secretariat’s Management Evaluation Unit (MEU), which deals with the highest number of such cases in the UN system, were considered not receivable. The high frequency with which cases are rejected by the MEU (and the UN Dispute Tribunal which has comparable figures) for procedural reasons are deemed by the JIU to be one reason why staff still do not fully trust the UN’s justice system. To address this problem, UNICEF and UNHCR management evaluation processes often do address the merits of a case even when the case has not adhered to procedural deadlines or rules and could be considered non-receivable. This has demonstrated benefits in terms of improving staff’s perceptions of the benevolence of the process and helped improve the trust of staff in the justice system and their organizations. The JIU Inspectors however caution that routine exceptions to procedural deadlines and requirements risks undermining perceptions of the integrity of the process.
All of this highlights the complex dynamics of how trust can be created and undermined, sometimes even by the same process or action. Appreciating this complexity can help managers understand when and how to leverage different opportunities for informal dispute resolution. For example, if the staff member is convinced that you, as the manager, have created the dispute through an unfair or inappropriate decision or action, they are less likely to trust your recommendation for how to resolve the dispute. A suggestion from you to go to the Ombudsman for help may be perceived negatively, but a suggestion from a human resources officer that the staff member trusts could be agreeable. Conversely, staff are much less likely to trust human resources if a selection or promotion decision is at the heart of the conflict, because that human resource office was involved in the contested process, and in many parts of the UN is the same office that works with management in responding to formal complaints filed by staff about a recruitment or downsizing decision.
Somewhat counterintuitively, encouraging staff to explore or pursue a formal complaint at the start of a conflict may be helpful in opening up avenues for informal dispute resolution. If a staff member is sufficiently concerned about an issue that they feel the need to file a complaint, but this is rejected because they missed a deadline, your conflict is not actually resolved. It will likely just fester and get worse. So creating delays is never a good idea.
Approximately 11-16% of cases are rejected by the UNDT because they missed the deadline. According to the JIU, the most common reason that both the MEU and UNDT considered a case not receivable was because the complainants failed to identify an appealable administrative decision. Why this is happening was unclear but it seems to point to the fact that staff members feel wronged but are unable to identify or articulate how this was a result of an administrative decision. Encouraging staff members who feel wronged to seek independent legal advice to help them understand whether they have been subjected to an administrative decision, or to clarify that they are embroiled in an interpersonal dispute which is not receivable, may change their perception of the utility of informal dispute resolution.
If their complaint goes forward and you need to respond to a request for a management evaluation, this can also provide another window of opportunity to resolve the issue. As the JIU report notes, the purpose of many of a management evaluation, as well as many peer review processes, such as performance rebuttals, is to allow for the different layers of management to reevaluate and potentially adjust or correct a decision before it goes to a formal tribunal. Yet the Inspectors do not seem convinced that this is happening as much as it should, in part because of the more legalistic nature of many processes since the 2009 administration of justice reforms in the UN. Reevaluating a managerial decision is not just an element of genuine managerial accountability, as highlighted by the JIU, it also is another opportunity to de-escalate and resolve conflict without going through the full formal judicial process.
In practice, this is not always as easy as it sounds. Admitting you made a mistake as the manager is never easy. Often the most contested managerial decisions, which are related to selection, promotion and downsizing decisions, are the function of multiple inputs and decisionmakers. Engaging with a management evaluation process, or other peer review processes including rebuttal panels can be an opportunity to sit with all the managers involved in the decision and consider whether changes need to be made with respect to the decision and related processes that led to your decision. This is where you as a manager can separately enlist help from the Ombudsman to facilitate such conversations with your own bosses as needed.
The complexities of the processes, how they are perceived, and where trust and mistrust is created means there is unfortunately no easy roadmap to resolving conflict. But analysis of the systemic issues highlighted in the various administration of justice reports, including from Ombudsman’s offices do point to some key considerations for managers trying to use informal conflict resolution effectively:
The Ombudsman’s office and informal conflict resolution services are available throughout the conflict. It is wise for you as a manager to seek advice from them sooner rather than later, but it is never too late to enlist their help.
When conflict is brewing, suggest to the staff involved that you all reach out to the Ombudsman either together or separately to seek out support in resolving the conflict informally.
Make it clear that your suggestion is not meant to prevent staff from seeking redress through the formal justice system and highlight that they can and should seek legal advice on how to do that. (Some organizations like UNESCO, FAO, WFP, IAEA and UNIDO have restrictions on using external legal advisors, so when in doubt suggest the staff member get guidance from the staff association on legal help).
Willingness to take a risk in trusting different actors like the Ombudsman can change over time. Remain open to using the services of the Ombudsman’s office throughout the process and be ready to engage when a staff member suggests it. Even if they don’t agree to engage with the Ombudsman, you can continue to seek advice from the Ombudsman as a manager.
Use a management evaluation process, performance rebuttal or other peer review process to consider with the other managerial stakeholders whether there is room to address miscommunications, adjust your decision (with an appropriate communication about how and why) or find other solutions to the dispute. The Ombudsman’s office or a trusted HR partner may be helpful in facilitating such a managerial decision.
If a conflict has led to a formal judicial finding or deemed a complaint non-receivable, there may be a need to enlist a facilitator to help re-build trust in your team or reconsider work processes to address residual issues or prevent a similar conflict from reoccurring. The Ombudsman’s office or your local learning team can help design team or small group interventions.
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