Recommendations
on employment
problems in Tunisia

2.7 Open door policy

Guideline for employment problems / RESOLVING: 2.7 Open door policy

Most plausible interventions

During the orientation process of the available literature, we identified the following interventions as most plausible for workplace disputes:

Early neutral evaluation ^[1] is a process in which the parties or their counsel present their cases to a neutral third party (usually an experienced and respected lawyer with expertise in the substantive area of the dispute) who renders a non-binding reasoned evaluation on the merit of the case. As the name suggests, this is usually most effective if attempted at an early stage in the life of the dispute, before significant costs have been incurred ^[2]. This process combines features of both a decision-making and a non-decision-making process. During the process, the neutral may be invited to serve as mediator or facilitator ^[3].

The early neutral evaluation process can be triggered by written agreement in the parties’ contract or by mutual agreement if such a settlement procedure is not contemplated by their contract. Once the process has been initiated, the parties are given a list of potential neutral evaluators who possess the required expertise to hear the dispute. The parties then mutually agree to an evaluator. The evaluator then works with the parties for exchanging initial written statements. Generally, an initial statement describes the substance of the dispute, the parties’ views of the critical liability and damage issues, important evidence and any other information that may be useful to the evaluator. The evaluator and the parties also jointly agree to the length and extent of the initial written statements ^[4].

The early neutral evaluation process at the evaluation, each party presents its claims or defences and describes the principal evidence on which its claims or defences are based. The evaluation session is informal, and the rules of evidence do not apply. After the evaluation session concludes, the parties may agree to participate in follow-up sessions to further facilitate settlement ^[5].

An organisation’s open-door policy is the procedure or the practice in which employees are able to approach their superiors at various levels, and in which the meeting between them takes place as a result of the employee’s initiative only, and not as a result of a managerial action or a manager’s decision to see the employee. It merely suggests that an employee who wishes to see his or her superior will be able to do so without too much difficulty. Although there may be more than one way in which employees may encounter their managers ^[6].

Open door policy elements, when it comes to open-door policy, we would aspire that this follows through for all situations that occur during employee’s workday and work span, such as: complaints, feedback, asking for counselling, ask for a resolution to a previously raised issue, discuss personal topics safety and harassment issues ^[7].

In an open-door process, employees are expected to try to resolve issues and conflicts by discussing them informally and promptly with their immediate supervisor as they arise. Supervisors are responsible for listening to and responding to their employees’ questions and/or concerns in a timely manner. If the issue has not been resolved to the employee’s satisfaction through the informal process, the employee may choose to meet with human resources, and he will meet with the employee to understand the issue and meet with the supervisor to understand their view on the issue at hand. Human resources will document all the information that is obtained from the employee and the supervisor and will work with the supervisor and the employee to determine an outcome. He will ensure that all policies and procedures are followed according to the standards as outlined in the policy manual ^[8].

PICO question

For parties to a workplace dispute, is early neutral evaluation or open-door policy more effective for well-being?

Search strategy

The databases used are: Wiley Online Library, JSTOR, and ResearchGate, government of Canada website, keka website, owellegal website, harper james website.

For this PICO question, keywords used in the search strategy are: early neutral evaluation, workplace dispute, conflict management, open door policy.

Assessment and grading of evidence

The main sources of evidence used for this particular subject are:

Schmidt, D. E., & Schmidt, A. G. (n.d.). Open Door Policies: Part of the Solution or Part of the Problem in Mediating Workplace Conflict?
Austin, G. (2020). Open Door Policy, Policy Statement: Role of the Human Resources Department. Head of Finance & Administration.
Shenhar, A. (1993). Keeping Management’s Door Open: How to Establish an Open Door Policy that Works. Leadership and Organization Development Journal, 14(2).
Open Door Policy (2020). Keka. Retrieved from https://www.keka.com/media/2020/05/POLICY-Open-Door-Recovered.pdf.
Early Neutral Evaluation: Getting an Expert’s Assessment. American Arbitration Association.
Common ADR Process - An Overview (No. 1). ADR Practical Guide Series, Herbert Smith Freehills Dispute Resolution.
Dispute Resolution Series, Practice Module 5. (n.d.). Produced by Dispute Prevention and Resolution Services, Department of Justice, Canada. Retrieved from https://www.justice.gc.ca/eng/rp-pr/csj-sjc/dprs-sprd/res/drrg-mrrc/eval.html#ftn1.
Carson, I. (n.d.). Early Neutral Evaluation: What Is It and How Does It Work? Harper James. Retrieved from https://harperjames.co.uk/article/guide-to-early-neutral-evaluation/.
Neutral Evaluation: Pros and Cons. (n.d.). Owl Legal. Retrieved from https://www.owllegal.org/wp-content/uploads/2020/01/Early-Neutral-Evaluation-pros-and-cons.pdf.

Diane and Alan in their research identify, describe and analyse the important determinants in creating workplace democracy through open door policy. They perform a research and practice synthesis of past and present labor policies that protect private employee information. To end up producing an efficient compilation and appraisal of comparable programs and employment trends for promoting more democratic work environments.

The American arbitration association (AAA) as the world’s leading provider of ADR services. The AAA resolution options assist parties to minimise the impact of disputes by resolving them earlier. In this regard it has launched a guide outlining the early neutral evaluation (ENE) process, including the steps involved from case initiation through resolution, and covers the procedures utilised in ENE cases.

Aron in his article How to establish an open-door policy that works discussed the payoffs associated with open door policies as well as the advantages, difficulties and danger he also demonstrated the key elements of an effective policy.

The government of Canada provides through its official website, on the dispute prevention and resolution section a detailed article on the early neutral evaluation process by explaining the ENE process and identifying its advantages and disadvantages.

Quality of evidence and research gap

According to our research method, we grade the evidence comparing early neutral evaluation and open-door policy in resolving workplace disputes as very low. research on early neutral evaluation barely exists and most sources are opinions of international experts. Also, a clear uncertainty about the study results has been observed.

Recommendation

Desirable outcomes

Early neutral evaluation	Open door policy
The overriding purpose of neutral evaluation is to make litigation less expensive for parties. By reducing pre-trial costs and enhancing pre-trial practice. Neutral evaluation attempts to avoid some of the pitfalls of litigation, such as the failure of lawyers and clients to assess their cases early, the uncommunicative pleadings and unnecessary or unfocused discovery, which lead to unnecessary costs and delays ^[9].	For both sides, the major benefit is the ongoing communication between workers and managers. This communication is, for many workers, the only way of sensing their importance to the organisation. In the course of their work, employees are constantly preoccupied with work-related questions, and they conceive many suggestions and ideas for improvement. If an outlet for these ideas is available, and if someone is willing to listen, employees will be encouraged to care more about their work and to seek better ways of doing their jobs. Improvement then becomes a way of life in such organisations, and everyone is encouraged to participate in the process of further improving the business and getting better results ^[14].
The ENE has a range of characteristics that makes the process more pleasant. It is voluntary: it is non-binding on the parties, they are free to accept or reject the outcome of the neutral evaluation. They must expressly agree to attempt settlement through the neutral evaluation process and may withdraw from the process at any given time.	Employee motivation is the other side of the coin. An employee who is treated well, and who knows that personal problems will be taken seriously, will become a better motivated worker. The open communication climate will increase the employee’s trust in the organisation and will enhance both satisfaction and loyalty. At the same time, alienation and isolation will be greatly reduced ^[15].
Informal: there are no fixed evidentiary or procedural rules governing the process. Rather, the parties decide on the governing rules that may be set out in writing in the neutral evaluation agreement. This is a flexible process as its scope can be shaped by the neutral evaluator and/or the parties according, for example, to the type of dispute, complexity of the case and number of parties involved.	An open-door policy is one of the most effective ways for companies to avoid unionisation and reduce the risk of employees resorting to legal action. Legal actions taken by employees against their employer can be very painful and costly and can damage an organisation’s image in both the public’s eyes and in the eyes of other employees. To avoid unionisation, many organisations even establish union-like grievance procedures, which include, among other elements, an open-door policy. It has been found that companies with ineffective grievance procedures are often least able to resist unionisation, while companies with no formal grievance procedures are more likely to have a portion of their workforce unionised than companies that do have formal procedures (58 per cent compared with 25 per cent). By contrast, when employees respect the company’s complaint resolution system, the likelihood of union organisation and legal actions is much more limited ^[16].
Confidential: neutral evaluation is generally a confidential process, unless the parties agree otherwise. The parties should jointly establish the extent of confidentiality in a confidentiality agreement or via a clause in the neutral evaluation agreement.	Resources department are available to assist employees with work-related issues and promote communication and understanding between employees and managers. The Human Resources representative acts as an impartial gatekeeper during the open-door process. She/He does not advocate for either party but ensures that the open-door procedure is followed ^[17].
Assisted: the neutral evaluator’s role is that of an impartial third party who helps the parties identify the main issues in dispute, discusses the strengths and weaknesses of the parties’ arguments, assesses the merits of the claims and renders an opinion on the likely outcome of the case in court. Whenever possible, the neutral evaluator helps the parties explore the possibility of a mutually acceptable settlement and may be invited to serve as mediator or facilitator ^[10].
While neutral evaluation may include settlement discussions, its broader purpose is to contribute to both the case development and the settlement process. When the parties are reluctant to engage in anything but traditional means of dispute resolution such as litigation, neutral evaluation can be used to help move them towards settlement or other alternatives. Indeed, Neutral Evaluation provides a neutral setting where parties who might not otherwise be amenable to DR can ponder the various possibilities. Clearly, the objective assessment made by the neutral evaluator forces all counsel and parties to confront their respective position at an early stage. It may also refocus the parties when other strategies were unsuccessful ^[11].
Neutral evaluation provides an opportunity for early, open and direct communication, enabling parties to focus on the core issues in dispute. The process motivates counsel and parties to concentrate on the case earlier than usual and enables them to increase their understanding of the issues while learning what their opponent’s case really is all about ^[12].
The presence of a third-party neutral allows for a controlled and impartial process which may help the parties recognize the limitations of their cases and favours a prompt, early settlement. The presence of the neutral evaluator can even introduce a fresh and creative perspective to the litigation, helping the parties to search for alternative solutions ^[13].

Undesirable outcomes

Early neutral evaluation	Open door policy
The neutral evaluation process can be perceived as adding an additional step or layer before getting to court and thus postponing the eventual trial. Depending on the ENE agreement drawn up by the parties, the process can potentially become lengthy. This could prove expensive as ultimately, the evaluator’s decision is not binding ^[18].	Open door policies have evolved as mechanisms of control over workers. As long as supervisor or managerial discretion cannot be proven as violating the public policy exception to at-will employment rights, employees have little recourse to adverse action based on their personal information. Under these conditions, most open-door policies are really part of the problem and not part of the solution to mediating workplace conflict. Without restructuring both private and public sector organisational culture to create an understanding of the impact of work-life conflicts on productivity and organisational success, contemporary work-life policies have evolved as mechanisms of control over workers both on and off the job ^[26].
ENE may not be suitable for large, complex disputes. If the issues cannot be dealt with separately, a consideration of the whole dispute may be time-consuming. The evaluation may be too long and with too many caveats to provide any real assistance ^[19].	Employee’s perception of the openness of the door is not always positive. If a manager declares, in good faith, that the door is always open and that he or she sincerely wants to listen to the employees, but no one enters, it means that the door is actually closed, at least in the eyes of employees. The reasons may be plenty, but common to all is probably the employee’s perception of how he or she will be treated after making the first step towards the door. Some employees simply do not believe it will do them any good. They often perceive a defensive, rather than a supportive, attitude on the side of management. Managers, for their part, despite their declarations that they are ready to listen, usually believe their actions are right — or they would not have taken them in the first place. Any complaints by employees are, therefore, presumably inappropriate ^[27].
There is concern about possible duplication between neutral evaluation and other case management or ADR processes ^[20].	The difficulty in establishing effective open-door policies. It arises from the fact that many complaints are connected to actions or decisions made by immediate supervisors and, to resolve them, the employee must talk to managers at a higher level. Often, workers simply do not believe that higher-echelon managers will be prepared to act against their subordinates. This belief is indeed confirmed by the attitude of lower and middle managers towards the subject of direct discussions of workers with top management. Even if top management wishes to encourage such direct appeals, lower-level managers tend to feel threatened and they often seek, and even insist on having their superiors’ protection and support ^[28].
Neutral evaluation may be vulnerable to manipulation as it may be used to preview a counterpart’s case; or else, if pursued in bad faith (when a defendant agrees to the process, but does not frankly cooperate), it may also be used as a dilatory tactic. It can also polarise positions in negotiation if one party perceives its case is ‘right’ in light of the opinion ^[21].	The manager’s immediate reception of the employee entering his or her office can also be a source of difficulty for an effective open door. If the worker comes in and the manager looks busy, preoccupied with other problems, or is frequently interrupted by incoming phone calls or other people knocking on the door, it is probable that the employee will simply never make this trip again. Managers, on the other hand, are reluctant to be available at all times, because of the real burden such a practice may impose on their time management and the disruption caused to their schedules ^[29].
Not always appropriate when there are significant issues of fact in dispute. Evaluator does not have the same opportunity to hear from witnesses as in other forms of dispute resolution ^[22]. Also, depending on the size and complexity of the issues, the extent of preparation required might render the ENE disproportionately expensive, especially as the result is nonbinding and may not lead to settlement ^[23].	The open-door policy procedure hampers employees to call upon. it may be involved in exploiting the open-door policy, or the formal written request which is often required before employees are allowed to enter the manager’s door. Very often, an employee will hesitate to file a request in writing, since this action may be interpreted as a direct complaint against somebody. If this somebody is the employee’s superior, or another person with whom the employee must go on living in the future, he or she may have second thoughts about filing a request. Only if an employee can be sure of being able to talk directly to a senior executive and get a response on the spot, will he or she be encouraged to proceed further with the complaint. The need for formal, written requests for open-door interviews is, therefore, a major barrier to the use of an open door, and it leaves many workers with their problems unresolved ^[30].
A losing side may not accept the evaluator’s decision and therefore decide to proceed with litigation ^[24]. The losing party may simply ignore a decision it does not agree with, argue that the decision was not properly considered and that a trial judge, with the benefit of all the evidence, will reach a different conclusion. This may, in turn, lead a party to better prepare its case in litigation, making it more difficult for the winning party to capitalise on the successful evaluation ^[25].

Balance of Outcomes

Taken together, the available research suggests that open door policy is not only effective in resolving workplace disputes, but it also plays a relevant preventive role. Indeed, opening communication channels between the employer and employee can help in maintaining a stable and a healthy work environment. Also, employees are more motivated and satisfied with their job and employers on the other side are getting better results from their employees. It has proved its effectiveness for companies to avoid unionisation and reduce the risk of employees resorting to legal action.

However, it is criticised by some authors as a mechanism of control over workers if it is not properly established and can even sometimes be negatively perceived from employees.

On the other hand, early neutral evaluation can also play an important role in preventing the escalation of a conflict by its contribution to the case development and the settlement process; it also provides an opportunity for early, open and direct communication, enabling parties to focus on the core issues in dispute. Nevertheless, it can be perceived as adding an additional step or layer before getting to court and thus postponing the eventual trial and may be vulnerable to manipulation. Also, it is not always appropriate when there are significant issues of fact in dispute and do not prevent any party from proceeding with litigation if he doesn’t agree on the evaluator’s decision.

The desirable outcomes of open-door policy outweigh those of early neutral evaluation, and the undesirable outcomes of early neutral evaluation outweigh those of open-door policy. Therefore, an open-door policy is preferred.

Recommendation

Taking into account the balance of outcomes, the benefits for parties to a workplace dispute, and the quality and consistency of the evidence, we make the following recommendation: for parties to a workplace dispute resolution, open door policy is more conducive to well-being than early neutral evaluation.

View References

^[1] Dispute Resolution Series, Practice Module 5. Produit par les Services de prévention et de résolution des différends, Ministère de la Justice du Canada. Consulté à l’adresse : https://www.justice.gc.ca/eng/rp-pr/csj-sjc/dprs-sprd/res/drrg-mrrc/eval.html#ftn1

^[2] Common ADR Process – An Overview (No. 1). Série de guides pratiques ADR, Herbert Smith Freehills Dispute Resolution.

^[3] Ibid.

^[4] Early Neutral Evaluation: Getting an Expert’s Assessment. American Arbitration Association. Consulté à l’adresse : https://www.adr.org/sites/default/files/document_repository/Early_Neutral_Evaluation.pdf, p. 1.

^[5] Ibid., p. 2.

^[6] Shenhar, A. (1993). Keeping Management’s Door Open: How to Establish an Open Door Policy that Works. Leadership and Organization Development Journal, 14(2), p. 9.

^[7] Open Door Policy (2020). Keka. Consulté à l’adresse : https://www.keka.com/media/2020/05/POLICY-Open-Door-Recovered.pdf, p. 2.

^[8] Austin, G. (2020). Open Door Policy, Policy Statement: Role of the Human Resources Department. Head of Finance & Administration, p. 2.

^[9-13] Op. cit., réf. [1].

^[14-16] Shenhar, A. (1993). Keeping Management’s Door Open: How to Establish an Open Door Policy that Works. Leadership and Organization Development Journal, 14(2), p. 9. Ibid.

^[17] Op. cit., réf. [8], p. 2.

^[18] Carson, I. (n.d.). Early Neutral Evaluation: What Is It and How Does It Work? Harper James. Consulté à l’adresse : https://harperjames.co.uk/article/guide-to-early-neutral-evaluation/.

^[19] Neutral Evaluation: Pros and Cons. (n.d.). Owl Legal. Consulté à l’adresse : https://www.owllegal.org/wp-content/uploads/2020/01/Early-Neutral-Evaluation-pros-and-cons.pdf.

^[20] Op. cit., réf. [1].

^[21] Op. cit., réf. [2], p. 3.

^[22] Op. cit., réf. [18].

^[23] Op. cit., réf. [19].

^[24] Op. cit., réf. [18].

^[25] Op. cit., réf. [19].

^[26] Schmidt, D. E., & Schmidt, A. G. (n.d.). Open Door Policies: Part of the Solution or Part of the Problem in Mediating Workplace Conflict?, p. 14.

^[27-30] Op. cit., réf. [6], p. 10.