Mediation in the Workplace

When conflict in the workplace impacts on productivity or the welfare of employees, strong action is required. Some conflicts can be resolved without the need for a third party, while others require alternative action. 

Mediation is one solution. 

What is mediation?

Mediation is a complex process that is difficult to explain in brief. Basically, mediation is reaching an agreement or an understanding through open discussion and resolution. Mediation can be between conflicting parties, or even one individual who has a grievance against a specific issue or group. There are specific courses available on mediation.

How can mediation help reduce workplace disputes?

Mediation is just one form of managing conflict within the workplace. Mediation allows the people involved in the dispute to have a say about how the situation is handled. It provides an opportunity for an issue or issues to be openly discussed.

In most situations the dispute has occurred because the parties involved have differing opinions or a different understanding of the situation. Each party has interpreted the actions of another party differently, resulting in a misunderstanding or ill-feeling.

Mediation allows each party to explain their perspective in a controlled manner, hopefully in a non-threatening, non-confrontational environment. It also allows each party to get an understanding of the other party's perspective.

There is no compulsion to reach an agreement. Mediation is about opening the lines of communication in a controlled environment. It is not about who is right or who is wrong. It is not always between two parties. Sometimes there are a number of parties involved in the process.

For mediation to be successful, all parties generally have to make concessions to change the way they act and treat other parties involved in the dispute. This is usually made easier after gaining an appreciation of the other parties' feelings and perspective.

In your experience when is mediation most useful?

That's a hard question. In a nutshell, mediation is a viable option when there is a good possibility of a dispute being settled through open discussion – particularly when there has been a possible misunderstanding.

For mediation to be successful, the parties involved must be prepared to talk, must leave their anger at home and must be prepared to make concessions. It is not uncommon for court cases involving conflict to be adjourned for mediation as an alternative option. Mediation is often a workable, cost effective and relatively quick solution.

Are there specific preconditions that must exist for a mediation to be successful?

Parties must be prepared to talk and have a desire to resolve the issues. They must be prepared to make concessions. No matter what the dispute is about, the parties must agree to mediate and be prepared to discuss the issues in a logical manner.

I was recently involved in a mediation that failed because it was clear one of the parties had mental health issues. Though they expressed a desire to mediate, the participant was unable to rationally discuss or understand some of the issues.

The participant was unaware or in denial of behavioural issues relating to their health, which exacerbated the problem.

Who should conduct mediation?

A mediator should have previous training or specific mediation skills. Firstly, mediation must be conducted by an independent person – not involved in the dispute. There is no cut and dried way of conducting mediation. It involves assessing the situation, assessing the personalities involved and also having a good understanding of what needs to be achieved through the mediation process. Mediation requires a considerable amount of skill, patience and good communication skills.

Mediators must be impartial and assist in keeping communication open. They must know when to give participants "time out" and be able to read body language and demeanour. They should also be skilled at defusing escalating emotions and know how and when to re-focus parties on relevant issues. Most mediators learn new skills every day.

Can you give examples of successful mediations?

I've had many successful mediations, but there was one case I did a couple of years ago that had a long-term impact on the community in which I was working.

One of the participants in the mediation was a prominent, respected member of the business community who was openly prejudice toward a minority group within the community. The business person blamed the minority group for everything "negative" in the community.

Because of their stature, they had the ability to influence the way other community members viewed and portrayed the minority group.

During the mediation the person was given an opportunity to discuss the issues and their feelings toward the minority group. Representatives of the minority group listened to the grievances and explained that there were good and bad people in every community. The discussion also highlighted positive aspects and examples of people from within that minority group that value added to the general community, this all assisted in opening the business persons perspectives. The business person was made aware of the impact their comments and perceptions had made on influencing others within the community. The mediation process assisted to greatly change the way the business person portrayed the minority group within the broader community. It assisted in building a more positive relationship between the business community and the minority group.

This was an unusual case, illustrating that mediation can involve many different formats. In another case, I had a mediation where one of the persons involved declined to take part in a formal mediation process with the other party. After hearing the other party's side, that person indicated they would prefer to settle the matter over "a cup of tea". The other party agreed and last reports are that both parties are working more effectively in the workplace and have put their differences behind them.

In some cases mediation can be a prelude to dealing with a formal complaint and can negate the need for a costly investigation.

What advice would you give to someone conducting mediation for the first time?

Have a plan and know what you would like to achieve before you start. There are a few basic rules, which must be discussed with the parties involved. The participants must be clear on the rules of engagement and must abide by those rules.

Firstly, the views and opinions of each party should be respected. Parties should not interrupt each other. Each party should be given an opportunity to speak and state their opinions. The conversation should not antagonize the situation or lay blame. There is no right or wrong. All parties must try to put past differences behind them. Issues must be resolved to the satisfaction of all parties. Clearly, it is an involved process.

A good mediator is a good "juggler" and stage manager. Mediation is a fluid process with many twists and turns. The mediator can terminate the process at any stage if they feel the parties are not co-operating, are hindering the process, or they believe that no further progress can be made.

The last thing the mediation process should be is a slinging match or a melee.

What records should be kept for a mediation?

Firstly, an agreement should be signed between the parties involved indicating they are prepared to go to mediation. There should be no obligation to come to an agreement or achieve an outcome. They should be able to leave at any time.

Mediation is not a binding process. What is discussed within a mediation is private and confidential and should remain within the mediation room. A formal record of what is said should not be kept. It is, however, good practice for the mediator to take notes throughout the process to assist with facilitating the discussion, redirecting focus and also assisting with summing up the outcomes and any agreements. At the end of the process the mediator gives a summary and outlines areas that have been settled and discusses options for issues that have not been resolved.

If a case is fully mediated to the satisfaction of all parties involved, it is good practice to make a record of the settlement terms and the points of agreement. Parties should be encouraged to sign this agreement.

What if the mediation is not successful?

This is not a bad thing. Generally the parties have had an opportunity to hear each other's side and can go and hopefully reflect on that. I have had many mediations where you think it has failed, but later the situation improves under their own terms. An unsuccessful mediation does not impact on the ability of an employer or affected party to take other action. For employers this may include disciplinary action, relocation, pecuniary action or even termination.

There are many other options such as arbitration or taking the matter to court.For many, mediation is considered a safe and soft option. It is generally the first option. If that fails, other people must take action or make a decision on their behalf.

WISE Workplace Investigations offers mediation services through our trained and experienced mediators.