Report of the Mediator (1 August 1993 to 31 May 1995) (submitted by the Mediator)

EC/1995/SC.2/CRP.23

I. INTRODUCTION

1. The High Commissioner established the function of Mediator, reporting directly to her, for a temporary period beginning 1 August 1993, "to receive and investigate individual grievances (of staff members) with a view to reaching fast and fair solutions." The terms of reference of the Mediator, finalized after consultation with staff representatives, were brought to the attention of the staff at large on 30 August 1993. The present incumbent has filled the position since its inception.

2. Since that date, the Mediator has reported to the High Commissioner on a regular basis every five to six weeks, while two general reports have been distributed to all staff members (March and October 1994). In April 1995, the Mediator briefed the High Commissioner's Senior Management Committee on 20 months' activities.

II. TERMS OF REFERENCE AND MODUS OPERANDI

3. While bearing in mind the mandates of similar institutions in other United Nations organizations, as well as administrative recourse mechanisms foreseen in the United Nations Staff Rules and Regulations, the terms of reference of the UNHCR Mediator (Annex I) are based principally on the successful models provided by national ombudsman functions in various countries.

4. The principle concern of the drafters was to ensure the authority and independence of the Mediator, the absolute confidentiality of matters brought to her/his attention and the accessibility of the Mediator to all staff members regardless of the nature and duration of their contract.

5. Thus, in keeping with the High Commissioner's intent, the Mediator's purpose is to:

(a) safeguard the individual staff member's rights;

(b) intervene outside administrative and judicial processes;

(c) facilitate fair solutions, conciliating staff members' and institutional interests, particularly in areas where existing administrative law and practice are insufficiently sensitive to the individual's needs; and

(d) formulate recommendations which are within existing administrative law and practice but which may aim towards their change.

While accessible to all staff members and primarily at their service, the Mediator does not act as their "defense counsel", but rather as interceder and adviser. The Mediator's recommendations are in accordance with the Staff Rules, aiming to ensure that they are applied in an equitable manner and with the most favourable interpretation. While recourse to the Mediator may permit the avoidance of litigation, the institution does not replace existing administrative appeals procedures. It is clear that in a number of instances, the Mediator plays a preventive role, by initiating and/or facilitating the open and early discussion of personal or organizational problems. The institution of the Mediator can thus be seen as a management tool both in the resolution of conflicts and in the promotion of change of administrative and management practices.

In two years of practice, the Mediator's procedures have been kept simple and flexible. Staff members bring grievances or requests for advice to the Mediator's attention either in person, by letter, fax or telephone. While appeals are examined on a first-come-first-served basis, some cases, because of the nature of the complaint, have been given first priority. Documentation provided by staff members and other relevant sources of information are reviewed thoroughly when considering a case. This review generally precedes any discussion with third parties and ensures that such discussion grounded in fact rather than approximations or impressions.

Eventual démarches regarding the Mediator's conclusions and recommendations are undertaken after consultation and in agreement with the staff member(s) concerned. While in most cases the Mediator's advice and support have led to difficulties being resolved informally, largely through the staff member's own subsequent actions, others (15) have given rise to confidential reports which included:

(a) a summary of the issue(s) raised by the staff member(s);

(b) a summary of the review of the facts of the case and of the United Nations/UNHCR rules and practice which may be applicable to it;

(c) the conclusions reached by the Mediator; and

(d) any eventual recommendations and the period within which they should be implemented.

The thorough and objective examination of the facts of each case, as well as of relevant rules and practices, are essential to ensure that the Mediator's conclusions and recommendations are impartial and as clear as possible. Where appropriate, the Mediator's recommendations have reflected consensus solutions to the problems raised; they have also been applicable to other similar cases and may thus be considered as useful precedents.

Upon completion, reports are communicated to the staff member(s) and to the officer(s) responsible for taking action on the recommendation(s). The Mediator has followed up on each case until action on recommendations had been completed. The Mediator's terms of reference provide that where her/his recommendations have not been complied with, the case may be brought to the High Commissioner's attention for decision.

III. FIGURES

The 148 cases submitted as at 31 May 1995, broken down by gender and category, at Headquarters and in the field, and nature of grievance, are shown in the tables attached (Annex II, Tables 1 and 2). These figures do not include one-time requests for clarification/information on rules, procedures, etc. The graphic (Annex III, 1) reflects considerable variations in the number of cases submitted per month; there is however no particular pattern either in the timing, the number or the nature of the cases submitted. The time required to complete a case varies depending both on issues raised and the willingness of the parties concerned to find mutually agreed upon and viable solutions.

Roughly 3 per cent (2.96 per cent) of staff members (148/5,000) have sought the assistance of the Mediator. Only 56 per cent of these are staff in the field, which, given the overall proportion of Field to Headquarters staff (four to one), raises a number of questions; as indeed does the fact that male staff in the professional category are in a significant majority among the staff appealing from the field.

Among staff in the Professional category, a large number of cases are submitted by staff in their first five years of service with the organization, while middle-level and senior managers with ten or more years of service constitute a significant minority. General Service staff at Headquarters are more confident in seeking assistance than their colleagues in the field. The restrictions placed by many representatives on confidential communication with Headquarters is one of the obstacles GS field staff face, their fear of being perceived as "trouble-makers" is another. Their preoccupations relate mainly to fairness and equitable treatment and to their longer-term career prospects.

Over 57 per cent of problems concern staff members' careers and their future in the organization; interpersonal problems arise in roughly 15.7 per cent of cases; just over 24 per cent of complaints are contractual, related to the conditions of employment.

To date, action has been completed in 84 cases (56.75 per cent). In 36 cases remedial action has been recommended and taken. In two instances the Mediator's recommendations have not been accepted and have been submitted to the High Commissioner for decision: in the first, the staff member sought further remedy through the administrative recourse system of the United Nations; at the time of writing, the second was still under review. Generally, where remedial action has been accepted, implementation has followed within a reasonable time (usually three to four months). In four cases, solutions required decisions from United Nations common system instances (International Civil Service Commission, Compensation Claims Boards, United Nations Joint Staff Pension Fund) which, because of the procedures involved have sometimes been long to obtain. Two of these concern medical claims relating to illness/accidents suffered in the field. In these two cases, the complexities of the procedures, the inordinate delays in dealing with them despite UNHCR support, have gravely affected the staff members concerned and must eventually give rise to serious question.

IV. THE PROBLEMS OF THE STAFF, THE PROBLEMS OF MANAGEMENT

Although a sample of 2.96 per cent of the organization's staff could be thought not to be very representative, the nature of some of the issues raised are nonetheless indicative of problems confronting management.

The purpose of the Mediator's intervention, which is to help resolve complaints with minimum delay and in a non-confrontational manner, and which is of course also that of the staff member who seeks it, is still not always understood, and initial reactions of supervisors and, indeed, of senior managers are at times very defensive and even hostile: why did the staff member complain?

By order of importance, the reasons for approaching the Mediator are:

• the confidentiality of the démarche;
• the neutrality of the Mediator;
• the desire to avoid confrontation;
• the need to have an interlocutor with extensive experience;
• the unavailability of other means of recourse.

The high incidence (57 per cent) of cases related to career problems (contested Performance Evaluation Reports, non-promotion, the selection of reassignments, non-renewal of contracts) must be a matter of considerable concern. When examined, they all relate to one or several of the following:

(i) job-descriptions, definition of tasks, distribution of workloads overlapping responsibilities, all of which can lead to tensions, frustration and stress;

(ii) recruitment criteria and practices; criteria in selections for assignments; repeated assignment of staff to posts above the level of their grade without promotion despite consistently good and even high-level performance reports;

(iii) adequacy of appropriate in-house training: the "swim or sink" criteria as a basis for the assessment of performance and general rule of survival in the organization;

(iv) communication between staff members and supervisors; ill-defined lines of communication and authority, absence of proper briefing, supervisors' instructions/expectations which are ill-adapted to the situation/grade-level of staff members;

(v) adequacy of leadership and management: virtual absence of training for supervisors in the management of staff: team-building, crisis resolution, etc.

Much UNHCR work, particularly in the field, is accomplished in severely stressful situations in which staff members put in long work hours, shouldering heavy workloads and holding exceptional responsibilities. In these circumstances, feelings of isolation arise, of "not knowing where and how one fits in" which ultimately lead to a lowering of staff members' self regard, to depression and to a diminution of the quality of their performance, a phenomenon known as "burn out". Quite aside from the sometimes dramatic consequences for the individual staff member and their families, these practices and failures are extremely costly to the organization, in the effect they have on staff morale as well as in financial terms. The Mediator has therefore been led to raise a number of general managerial questions and recommend that they be addressed urgently.

Thus, to ensure that all levels of staff are and remain involved and responsible, the free flow of information and improved transparency of decision-making processes are essential to the sound management of staff. While the introduction of an appropriately structured Career Management System (CMS) should, eventually, remove at least some of the present causes of staff complaints, such a system cannot, of itself, be considered a panacea.

A glance at the grade hierarchy in the organization clearly shows that under a comparatively low number of senior managerial posts, the bulk of UNHCR professional staff are in the P.3 to P.4 grades, while the majority of staff, including those in the field, are in the local General Service category, with a small number in the National Officer category. This evidently has significant implications. It raises questions as to the nature of UNHCR career service in a situation of fluctuating needs and uncertain financial resources. A coherent and consistent effort towards human resources planning in the organization is necessary if major staff management crises are to be avoided in the future and the investment in change (CMS, decentralization, etc.) are to give the expected returns.

The Mediator has similarly expressed concern that the rapid expansion of UNHCR's activities, financial resources and staff, combined with efforts to implement reform and constructive change, has created workload levels in some of the support divisions, particularly in the Division for Human Resources Management (DHRM), which are out of proportion to their manpower and inevitably affect the quality of performance and service.

The Mediator has also stressed the urgency of defining and introducing appropriate managerial training programmes to strengthen managerial capacities at all levels. Adequate provision for such training will, to a considerable extent, condition the future of the CMS.

It has been found that all too often staff members do not know and do not exercise their rights fully. Similarly, supervisors are insufficiently aware of staff rights and, frequently, impatient with long administrative procedures, overlook such safeguards of staff rights as are enshrined in the Staff Rules. Inconsistency and arbitrariness in decision-making may result from this lack of knowledge and/or apparent indifference.

It has thus been the Mediator's concern to promote a greater knowledge and full compliance with rules of due process. While it is to be recognized that some efforts have indeed been made in that regard within personnel administration, the low awareness, especially at the field level, of applicable principles is disturbing at a time when the decentralization in personnel and financial management is progressively implemented.

Complaints relating to essentially administrative matters are, as a rule, the result of errors, oversight, undue delays or variations in the interpretation of the Rules. The Mediator has generally found DHRM willing to review and indeed reverse such decisions as were ill-founded.

Interpersonal relationships, although one cause of career problems, are rarely raised as such by staff in the field, a Headquarters-based Mediator having few means of direct and targeted intervention. So far, the Mediator's action has been most successful when such interpersonal problems have principally been between staff at approximately the same grade level, and where consideration of rank were not at issue. Both in the field and at Headquarters, while the Mediator's advice has been sought, actual mediation has been frequently refused for fear that the recourse to the Mediator would be considered threatening and "would only make matters worse". The Mediator's intervention has thus frequently taken the form of advice which has helped the staff member concerned to overcome at least some of his or her difficulties and avoid an escalation of the problems encountered.

V. CONCLUSION

In such a large, diverse and heavily burdened organization as UNHCR, the availability of an independent, neutral instance sensitive to staff concerns and mindful of organizational interests has, so far, proved its usefulness. Its future and means of action will have to be determined not only in the light of the changes currently being introduced in UNHCR's staff management policies, but also in the effectiveness of the implementation of the revised administrative recourse system adopted by the General Assembly in which mediation and conciliation are to play a significant role.