Common Issues with Workplace Mediations

Vince Scopelliti - Wednesday, August 08, 2018

Occasional conflicts and disputes are a fact of life in all workplaces. One of the best ways to defuse difficult situations, resolve office concerns and keep your staff happy is mediation. But even though this is a potentially very effective device in the employer's toolkit, workplace mediations can go wrong.

Let's take a look at the process of mediation, and some of the issues which might arise. 

What is mediation? 

The mediation process requires all parties involved in a dispute or issue to meet in the presence of a third party (the mediator), to try and come up with mutually acceptable solutions.

The mediator is trained and is required to be neutral. Unlike a judge, they will not make a determination or decision - instead, a mediator will listen to all parties and suggest objective solutions and options. 

what happens during mediation?

During the actual process of mediation, the parties are encouraged to ventilate their respective viewpoints. Each party then has the opportunity to have private discussions with the mediator, after which the mediator will discuss any commonalities and the key differences in each party's attitude, while suggesting potential resolutions.

Outcomes are flexible and are really only limited by the willingness of the involved parties to cooperate. In the employment context, this means that mediations may result in agreement to apologise, or more novel outcomes such as crediting or debiting leave hours, returning property, or providing work references. Mediations are confidential, which also makes them an extremely attractive option. 

key issues with mediation

Mediation can be extremely helpful by providing a positive communication and solution tool in circumstances where there are no easy answers.

However, mediation may not be as successful if one or both of the parties are extremely entrenched in their viewpoint and are unlikely or unwilling to compromise. This is particularly the case because mediation is a voluntary process - so if staff are reluctant to participate, they cannot be forced to engage.

Further, where matters of serious misconduct or illegality are involved, it may be inappropriate to attempt to find novel solutions to workplace issues. In those circumstances, it is generally appropriate to follow the traditional paths of discipline, incentivisation or other resolution methods.

There can also be issues if parties don't comply with any agreed upon outcomes of the mediation process. 

potential for problems after mediation

Any agreement which is reached during the mediation process can be as formal or as informal as the parties and workplace prefer: from a simple verbal agreement all the way through to a Deed of Settlement recording the negotiated terms or contract stipulating future actions.

Should a formal agreement be executed and one of the parties subsequently reneges on the terms of settlement, the aggrieved party can pursue legal action through the court system to force compliance.

If you have an issue in your workplace regarding employee conflict, it may be useful to discuss these issues with an external, experienced workplace investigator or mediator. If you need support in how to conduct an investigation or need to engage a mediator, contact WISE.

Why Forced Mediations are Doomed to Fail

Vince Scopelliti - Wednesday, May 02, 2018

Mediation can offer effective resolution of workplace disputes. It's a fair process that allows parties to be heard and encourages them to find a resolution both sides are satisfied with. 

Mediation should only be used when parties are willing to discuss their differences. In the case of a bullying complaint, an investigation is required in the first instance, to determine whether there is an active grievance or complaint afoot, causing one of the parties to feel unsafe in the workplace. 

Forcing an unwilling employee to the mediation table can lead to resentment and even legal action. 

How does mediation work?

In mediation, a third party facilitates an open discussion between two parties to help settle a dispute rather than going to court. Both sides are encouraged to reach an acceptable compromise. For employers, the idea is to resolve a dispute quickly and economically. 

while there are pros and cons for mediation, one positive is that a verdict is never 'handed down' but rather, the parties come to the decision together. It's an empowering process, giving the parties input into the outcome. 

The advantage of mediation is that disputes can be reexamined and reframed in order to find the appropriate solution. It's a flexible process that can be tailored to the needs of the players involved. 

A key aspect though, is that all parties need to act in good faith, and be open to discussion and negotiation. If mediation is forced upon an employee, they are likely to feel that the process isn't fair, leading to resentment, a difficult negotiation and disagreement with the outcome. 

Can an employer compel an employee to attend mediation?

While an employer can enforce mediation, and take disciplinary action if an employee fails to attend, there must be grounds to do so, and these grounds must be established. Without grounds, an employer may be left open to a claim of adverse action or victimisation. 

It's important in these situations, however, to carefully consider the reasons why the employee may not wish to be part of mediation. For example, they may fear a power imbalance or bias against them or may feel unsafe in their workplace, due to a bullying complaint which has not been addressed. 

Outlining the process: the role of the mediator

A mediator is appointed to facilitate the process. The mediator does not provide legal advice, nor do they offer legal counsel. A neutral third party, the mediator's role is not to make a decision, but to encourage the parties to come to their own, mutually agreed-upon resolution. 

In most cases, the mediator will make an opening statement and then give each party the opportunity to do the same. During this time, each party will share why they have agreed to the mediation and what they would like to achieve from it. This is not the time to air grievances. 

Just as a meeting is kept on track with an agenda, it's best to have a mediation meeting framework in place to ensure all steps are taken care of and all issues are dealt with accordingly. The agenda should be clearly spelt out and followed. The mediator will help determine what should and shouldn't be discussed and it's the mediator's role to keep the discussion on track. 

During the mediation, private sessions may also be helpful so parties can refresh and refuel. The mediator will meet with the individual parties one at a time to discuss how they are feeling. This process may be repeated if necessary. 

Once each agenda item has been addressed and discussed, a decision will be mutually agreed upon. The mediator will review, finalise and capture the agreement in writing. 

Approaching mediation

Asking an employee to mediate their grievance is a reasonable request - after all, restoring the peace between employees is important for business, and ensuring employees relations are happy and healthy is paramount. 

However, mediation will only work if the parties truly want to mediate. This means they want to come to an agreement together, and there's no possible reason why one party may be afraid or uncomfortable during the process. 

Forced mediation is not likely to be effective, as it is one-sided. 

When expert assistance is required

If the parties cannot find agreement on all agenda items, or there are behavioural concerns, it may be necessary to explore possible resolution options with an experienced external workplace mediator. 

If you need some support in how to conduct a mediation, need to engage a mediator, or would like to resolve a workplace conflict, contact WISE