The Problem

In the past few weeks, a row between RTHK’s acting assistant director Forever Sze Wing-yuen and director of broadcasting Roy Tang Yun-kwong has grabbed many headlines in local media.

It all started when Sze refused to switch the Headliner programme from TVB to ATV, which Tang had supposedly requested. This was followed by Tang lashing out at Sze’s alleged decision to leave two empty chairs for a weekly City Forum programme to mock the absence of government officials from a previous episode on national education.

Another twist occurred when Tang was rumoured to be intervening in editorial independence by refusing to substitute the empress and eunuch caricatures in Headliner’s logo with Nazi characters to mock Chief Executive Leung Chun-ying’s salute during and after his election. Then the two began throwing rhetorical darts at each other in the public, starting with Sze saying he felt Tang wanted him to carry out “political missions”.

What RTHK is experiencing is what can be properly categorised as an office dispute between Sze and Tang, with the row steadily worsening as it continues to go public in newspaper headlines and increasingly involve more staff. How can RTHK solve this problem, and how could it have been prevented from blowing up in the media in first place?

The Solution

Whilst mediation is no longer an unfamiliar concept in court cases and financial disputes, its use in the workplace is certainly less well known.

Mediation is an alternative way to resolve disputes. A mediator facilitates negotiation between disputants on a confidential and privileged basis. They are neutral, independent and unbiased. They help disputing parties understand each other’s concerns, and work towards finding common ground and agreeable options so that a settlement can be reached. Workplace mediation may be conducted by an external or in-house mediator to resolve such things as co-workers’ quarrels and employment disputes.

Workplace mediation is not uncommon in developed countries and has been gaining in popularity in places such as the US and the UK. As a result, in-house mediation departments (like an in-house legal department) have been widely promoted in many developed countries and are being increasingly established in companies worldwide.

In a recent Hong Kong case, a beauty parlour sought to restrict two ex-employees from working for a rival in the same shopping mall. The ex-employees believed their pay did not tally with the businesses they brought to the parlour, so when the nearby competitor offered better terms, they unsurprisingly accepted. The original parlour sought to prevent its ex-employees from working for its competitor by going through the courts. The attempt, however, proved futile, and not only did the parlour lose the legal battle, it had to pay handsome damages to its ex-employees and bear each party’s legal costs.

Would it have been better if a mediator was called in at the start? They would have guided each party to take a step back and see each other’s concerns. The parlour was concerned about financial sustainability and maintaining a stable workforce; the ex-employees wanted reasonable remuneration.

One possible option would have been to increase the ex-employee’s commissions, whereby persuading them to stay and work harder to bring in more businesses. With no one facilitating them to talk, however, everybody lost – the parlour lost the legal battle, while the ex-employees unwillingly became “famous” in the industry because of the court case.

Another type of employment-related dispute suitable for workplace mediation can be those that involve discrimination. In one case involving the Sex Discrimination Ordinance, a manager, after being convicted in a set of criminal proceedings, was then sued in a civil court by one of his employees who claimed she had been sexually harassed during her employment.

Without workplace mediation, the employee would have been exposed in a court room for a second time and again faced vigorous cross-examination – a process which would have no doubt felt like rubbing salt into the wound – whilst the manager would have again faced wide coverage in the media.

Through facilitation in mediation, it was found that the employee had been concerned about respect and etiquette among colleagues, whilst the manager cared about his negative publicity. Along with a heartfelt apology, a settlement was reached, including a monetary term as a token. Additionally, workplace mediation ensured the case’s confidentiality.

The Difference

What would have happened if a mediator had stepped in between RTHK’s Sze and Tang at the outset? The pair would have been able to confidentially arrange to negotiate in the mediator’s presence and receive help to explore their respective concerns. The situation now, however, is much more difficult to resolve, and by escalating their differences and focusing on their positions – rather than their concerns – the relationship between the two camps is likely to deteriorate further in the future.
 

Vod KS Chan is chairperson of the General Mediation Interest Group of the Hong Kong International Arbitration Centre’s Hong Kong Mediation Council

EDITOR’S NOTE: The information in this article should neither be relied on as legal advice nor be regarded as a substitute for detailed advice in individual cases. If advice concerning individual problems or other expert assistance is required, the service of a competent professional adviser should be sought.